WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
FIRST EXTRAORDINARY SESSION, 2005
SIXTH DAY
____________
Charleston, W. Va., Saturday, January 29, 2005
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Honorable Walt Helmick, a senator
from the fifteenth district.
Pending the reading of the Journal of Friday, January 28,
2005,
On motion of Senator Lanham, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Joint Resolution No. 101, Proposing amendment to
Constitution designated Pension Bond Amendment.
On motion of Senator Chafin, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
On page two, by striking out everything after the Resolved
clause and inserting in lieu thereof the following:
That the question of ratification or rejection of an amendment
to the Constitution of the State of West Virginia be submitted to
the voters of the State at the next general election to be held in
the year two thousand six, or at any special election held prior
thereto, which proposed amendment is as follows:
Pension Bond Amendment
The Legislature may authorize the issuing and selling of state
general obligation bonds not exceeding in the aggregate five
billion five hundred million dollars, which shall be in addition to
all other state bonds heretofore authorized. Such bonds may be
issued and sold at such time or times and in such amount or amounts
as the Legislature authorizes. The proceeds of the bonds hereby
authorized to be issued and sold shall be deposited in the trust
funds of the consolidated public retirement board to fund all or a
portion of the unfunded actuarial accrued liabilities of the State
Teachers Retirement System, W. Va. Code §§18-7A-1, et seq.; the
Judges' Retirement System, W. Va. Code §§51-9-1 et seq.,; and the
Public Safety Death, Disability and Retirement System, W. Va. Code
§§15-2-26 et seq. and used to pay any costs associated with the
issuance of the bonds. When a bond issue as aforesaid is
authorized, the Legislature shall direct the investment of such
proceeds as permitted by the laws and the Constitution of the State
of West Virginia.
When a bond issue as aforesaid is authorized, the Legislature shall at the same time provide for the levy, collection and
dedication of an additional state tax, or enhancement to such other
tax as the Legislature may determine, in such amount as may be
required to pay annually the interest on such bonds and the
principal thereof or premium, if any, within and not exceeding
thirty years and all such taxes so levied shall be irrevocably
dedicated for the payment of the principal of or premium, if any,
and interest on such bonds until such principal of and interest on
such bonds are finally paid and discharged. Such additional tax
shall be levied in any year only to the extent that the moneys from
the general revenue fund of the state irrevocably set aside and
appropriated and applied to the payment of the interest on and the
principal of the bonds becoming due and payable in the year are
insufficient therefor.
Any of the covenants, agreements, or
provisions in the acts of the Legislature levying such taxes shall
be enforceable in any court of competent jurisdiction by any of the
holders of the bonds.
The Legislature may enact legislation to implement the
provisions of this amendment.
__________
Resolved further, That in accordance with the provisions of
article eleven, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, such proposed
amendment is hereby numbered "Amendment No. 1" and designated as
the "Pension Bond Amendment" and the purpose of the proposed
amendment is summarized as follows: "To amend the State Constitution to permit the issuance and sale of additional state
general obligation bonds not exceeding five billion five hundred
million dollars to help provide for the fiscal soundness of the
State Teachers Retirement System, the Judges' Retirement System and
the Public Safety Death, Disability and Retirement System. These
additional state general obligation bonds will help the State to
fund the unfunded actuarial accrued liabilities of these systems.";
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Joint Resolution No. 101--Proposing an amendment
to the Constitution of the State of West Virginia authorizing
appropriations and the issuance and sale of additional state
general obligation bonds in an amount not exceeding five billion
five hundred million dollars for the purpose of funding all or a
portion of the unfunded actuarial accrued liabilities of the state
teachers retirement system, §18-7A-1, et seq., of the code of West
Virginia, the judges' retirement system, §51-9-1, et seq., of said
code and the public safety death, disability and retirement system,
§15-2-26, et seq., of said code and paying any costs associated
with the issuance of said bonds; requiring the Legislature to
direct the investment of the funds from such issuance and sale
pursuant to the laws and Constitution of the State of West
Virginia; requiring the levy, collection and dedication of an
additional tax for the payment of the principal and interest on the
bonds in any year the moneys from the general revenue fund of the state irrevocably set aside and appropriated and applied to the
payment of the interest on and the principal of the bonds becoming
due and payable in the year are insufficient therefor; numbering
and designating such proposed amendment; and providing a summarized
statement of the purpose of such proposed amendment.
Senator Chafin moved that the Senate concur in the House of
Delegates amendments to the resolution.
Following extended discussion,
The question being on the adoption of Senator Chafin's
aforestated motion, the same was put and prevailed.
Engrossed Senate Joint Resolution No. 101, as amended by the
House of Delegates, was then put upon its adoption.
On the adoption of the resolution, the yeas were: Bailey,
Boley, Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills,
Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Barnes and Harrison--2.
Absent: Bowman, Facemyer and Fanning--3.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the resolution
(Eng. S. J. R. No. 101) adopted, as follows:
Eng. Senate Joint Resolution No. 101--
Proposing an amendment
to the Constitution of the State of West Virginia authorizing
appropriations and the issuance and sale of additional state
general obligation bonds in an amount not exceeding five billion five hundred million dollars for the purpose of funding all or a
portion of the unfunded actuarial accrued liabilities of the state
teachers retirement system, §18-7A-1, et seq., of the code of West
Virginia, the judges' retirement system, §51-9-1, et seq., of said
code and the public safety death, disability and retirement system,
§15-2-26, et seq., of said code and paying any costs associated
with the issuance of said bonds; requiring the Legislature to
direct the investment of the funds from such issuance and sale
pursuant to the laws and Constitution of the State of West
Virginia; requiring the levy, collection and dedication of an
additional tax for the payment of the principal and interest on the
bonds in any year the moneys from the general revenue fund of the
state irrevocably set aside and appropriated and applied to the
payment of the interest on and the principal of the bonds becoming
due and payable in the year are insufficient therefor; numbering
and designating such proposed amendment; and providing a summarized
statement of the purpose of such proposed amendment.
Resolved by the Legislature of West Virginia, two thirds of
the members elected to each house agreeing thereto:
That the question of ratification or rejection of an amendment
to the Constitution of the State of West Virginia be submitted to
the voters of the State at the next general election to be held in
the year two thousand six, or at any special election held prior
thereto, which proposed amendment is as follows:
Pension Bond Amendment
The Legislature may authorize the issuing and selling of state general obligation bonds not exceeding in the aggregate five
billion five hundred million dollars, which shall be in addition to
all other state bonds heretofore authorized. Such bonds may be
issued and sold at such time or times and in such amount or amounts
as the Legislature authorizes. The proceeds of the bonds hereby
authorized to be issued and sold shall be deposited in the trust
funds of the consolidated public retirement board to fund all or a
portion of the unfunded actuarial accrued liabilities of the state
teachers retirement system, §18-7A-1, et seq., of the code of West
Virginia; the judges' retirement system, §51-9-1, et seq., of said
code; and the public safety death, disability and retirement
system, §15-2-26, et seq., of said code and used to pay any costs
associated with the issuance of the bonds. When a bond issue as
aforesaid is authorized, the Legislature shall direct the
investment of such proceeds as permitted by the laws and the
Constitution of the State of West Virginia.
When a bond issue as aforesaid is authorized, the Legislature
shall at the same time provide for the levy, collection and
dedication of an additional state tax, or enhancement to such
other tax as the Legislature may determine, in such amount as may
be required to pay annually the interest on such bonds and the
principal thereof or premium, if any, within and not exceeding
thirty years and all such taxes so levied shall be irrevocably
dedicated for the payment of the principal of or premium, if any,
and interest on such bonds until such principal of and interest
on such bonds are finally paid and discharged. Such additional tax shall be levied in any year only to the extent that the moneys
from the general revenue fund of the state irrevocably set aside
and appropriated and applied to the payment of the interest on and
the principal of the bonds becoming due and payable in the year
are insufficient therefor. Any of the covenants, agreements or
provisions in the acts of the Legislature levying such taxes shall
be enforceable in any court of competent jurisdiction by any of
the holders of the bonds.
The Legislature may enact legislation to implement the
provisions of this amendment.
__________
Resolved further, That in accordance with the provisions of
article eleven, chapter three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, such proposed
amendment is hereby numbered "Amendment No. 1" and designated as
the "Pension Bond Amendment" and the purpose of the proposed
amendment is summarized as follows: "To amend the State
Constitution to permit the issuance and sale of additional state
general obligation bonds not exceeding five billion five hundred
million dollars to help provide for the fiscal soundness of the
State Teachers Retirement System, the Judges' Retirement System,
and the Public Safety Death, Disability and Retirement System.
These additional state general obligation bonds will help the
State to fund the unfunded actuarial accrued liabilities of these
systems."
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and
requested the concurrence of the Senate in the House of Delegates
amendments, as to
Eng. Senate Bill No. 1002, Relating to reorganization of
executive branch of state government.
On motion of Senator Chafin, the message on the bill was
taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page five, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That
the code of West Virginia, 1931
, as amended, be amended
by adding thereto a new section, designated §
5-1-28;
that said
code be amended by adding thereto a new article, designated
§
5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5, §
5B-1-6 and §
5B-1-7
;
that §
5B-2-2 and §
5B-2-3 of said code be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §
5B-2-14;
that §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6
and
§5B-2E-9
of said code be amended and reenacted;
that §5D-1-4
and §5D-1-5
of said code be amended and reenacted;
that said code
be amended by adding thereto a new section, designated §
5D-1-24
;
that §5F-1-2 of said code be amended and reenacted; that §5F-2-1
and §5F-2-2
of said code be amended and reenacted
; that §
7-22-3, §
7-22-6, §
7-22-7, §
7-22-8, §
7-22-10, §
7-22-11, §
7-22-12, §
7-22-14
and §
7-22-15 of said code
be amended and reenacted; that §
8-38-3,
§
8-38-6, §
8-38-7, §
8-38-8, §
8-38-10, §
8-38-11, §
8-38-12, §
8-38-14
and §
8-38-15 of said code be amended and reenacted;
that §
12-7-4
and §
12-7-5
of said code
be amended and reenacted; that §13-2C-21
of said code be amended and reenacted; that §
17-24-4 of said code
be amended and reenacted; that §
18-9D-1
of said code be amended
and reenacted;
that §
18B-3D-1, §
18B-3D-2, §
18B-3D-3 and §
18B-3D-4
of said code
be amended and reenacted; that §
22C-1-4 of said code
be amended and reenacted; that
§29-22-18a of said code be amended
and reenacted;
that §31-15A-3
and §
31-15A-11
of said code be
amended and reenacted; that §
31-18-4 and §
31-18-5
of said code be
amended and reenacted
, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
§5-1-28. Prerequisites for bond issuance and refunding.
(a) Notwithstanding any other provision of this code to the
contrary, on On and after the first day of February, two thousand
five, bonds may not be issued or reissued refunded by the state
of West Virginia or any of its agencies, boards or commissions,
where without the express written direction of the governor, if:
(1) The ultimate user of the proceeds of the bonds is the state
of West Virginia or any of its agencies, boards, commissions or departments, or the issuance or reissuance departments; or (2)The
issuance or refunding of the bonds implicates the state's credit
rating. unless:
(1) The Legislature expressly authorizes the issuance or
reissuance of the bonds through the adoption of a concurrent
resolution; and
(2) Upon the express written direction of the governor.
(b) Prior to any state agency, board or commission
participating in any formal presentation to any nationally
recognized rating agency, with respect to the proposed issuance
or reissuance refunding of bonds where the ultimate user of the
proceeds of the bonds is the state of West Virginia or any of its
agencies, boards, commissions or departments, or the issuance or
reissuance refunding of the bonds implicates the state's credit
rating, the chair or director of the state agency, board or
commission shall provide written notice to the governor, the
President of the Senate and the Speaker of the House of Delegates,
of the date, time and place of the formal presentation at least
ten days in advance.
(C) All bond sale requirements established in this code shall
apply unless contrary to the provisions of this section.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-1. Department of commerce; office of secretary of
department of commerce.
(a) The secretary of commerce is the chief executive officer of the department. The governor shall appoint the secretary, by
and with the advice and consent of the Senate, for the term for
which the governor is elected. Any reference in this code to the
bureau of commerce means the department of commerce. Any
reference in this code to the commissioner of the department of
commerce means the secretary of commerce. As used in this
article, "secretary" means the secretary of commerce, and
"department" means department of commerce.
(b) The department may receive federal funds.
(c) The secretary serves at the will and pleasure of the
governor. The annual salary of the secretary is seventy-thousand
dollars.
(d) The department of commerce consists of the following
agencies, boards, commissions, divisions and offices, including
all of the allied, advisory, affiliated or related entities which
are incorporated in and shall be administered as part of the
department of commerce:
(1) Division of labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational safety and health review commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of manufactured housing construction and safety
provided in article nine, chapter twenty-one of this code;
(2) Office of miners' health, safety and training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and training for purposes of administrative support and liaison with
the office of the governor:
(A) Board of coal mine health and safety and coal mine safety
and technical review committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of miner training, education and certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine inspectors' examining board provided in article
nine, chapter twenty-two-a of this code;
(3) The West Virginia development office, which includes the
Tourism commission provided in article two, chapter five-b of this
code;
(4) Division of natural resources and natural resources
commission provided in article one, chapter twenty of this code.
The Blennerhassett historical state park provided in article
eight, chapter twenty-nine of this code is under the division of
natural resources;
(5) Division of forestry provided in article one-a, chapter
nineteen of this code; and
(6) Geological and economic survey provided in article two,
chapter twenty-nine of this code.
§5B-1-2. Agencies, boards, commissions, divisions and offices
comprising the department of commerce.
The department of commerce consists of the following
agencies, boards, commissions, divisions and offices, including
all of the allied, advisory, affiliated or related entities which are incorporated in and shall be administered as part of the
department of commerce:
(1) Division of labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational safety and health review commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of manufactured housing construction and safety
provided in article nine, chapter twenty-one of this code;
(2) Office of miners' health, safety and training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with
the office of the governor:
(A) Board of coal mine health and safety and coal mine safety
and technical review committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of miner training, education and certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine inspectors' examining board provided in article
nine, chapter twenty-two-a of this code;
(3) The West Virginia development office, which includes the
Tourism commission provided in article two, chapter five-b of this
code;
(4) Division of natural resources and natural resources
commission provided in article one, chapter twenty of this code.
The Blennerhassett historical state park provided in article eight, chapter twenty-nine of this code is under the division of
natural resources;
(5) Division of forestry provided in article one-a, chapter
nineteen of this code; and
(6) Geological and economic survey provided in article two,
chapter twenty-nine of this code.
§5B-1-3. Powers and duties of secretary, administrators,
division heads and employees.
(a) The secretary controls and supervises the department and
is responsible for the work of each department employee.
(b) The secretary has the power and authority specified in
this article, in article two, chapter five-f of this code and as
otherwise specified in this code.
(c) The secretary may assess agencies, boards, commissions,
divisions and offices in the department for the payment of
expenses of the office of the secretary.
(d) The secretary may employ professional staff, including,
but not limited to, certified public accountants, economists and
attorneys, assistants and other employees as necessary for the
efficient operation of the department.
(e) The secretary and administrators, division heads and
other employees of the department shall perform their duties as
specified in this code and as may be prescribed by the governor.
§5B-1-4. Reports by secretary.
The secretary shall report annually to the governor
concerning the conduct of the department and make other reports as the governor may require.
§5B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate his or her powers and duties to
assistants and employees, but the secretary is responsible for all
official acts of the department.
§5B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of
confidentiality. -- Information that would be confidential under
the laws of this state when provided to a division, agency, board,
commission or office within the department is confidential when
that information is provided to the secretary or an employee in
the office of the secretary. The confidential information may be
disclosed only: (1) To the applicable agency, board, commission
or division of the department to which the information relates;
or (2) in the manner authorized by provisions of this code
applicable to that agency, board, commission or division. This
confidentiality rule is a specific exemption from disclosure under
article one, chapter twenty-nine-b of this code.
(b) Interdepartmental communication of confidential
information. -- Notwithstanding any provision of this code to the
contrary, information that is confidential pursuant to this code
in the possession of any division, agency, board, commission or
office of the department may be disclosed to the secretary, or an
employee in the office of the secretary. The secretary or
employee shall safeguard the information and may not further
disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of
the agency, board, commission, division or office of the
department in whose hands the information is confidential. This
subsection does not require disclosure of individually
identifiable health care or other information that is prohibited
from disclosure by federal law. This subsection is a specific
exemption from the disclosure requirements of article one, chapter
twenty-nine-b of this code.
(c) The provisions of this section:
(1) Apply only to information that is actually disclosed by
a division, agency, board, commission or office within a
department to the secretary, or an employee in the office of the
secretary, of that department;
(2) Do not authorize disclosure or exempt from the provisions
of article one, chapter twenty-nine-b of this code any
confidential information of a division, agency, board, commission
or office within a department to any person or entity other than
the secretary, or an employee in the office of the secretary, of
that department;
(3) Apply only to disclosure between a division, agency,
board, commission or office within a department and the secretary,
or an employee in the office of the secretary, of that department.
§5B-1-7. Right of appeal from interference with functioning of
agency.
Any governmental entity may appeal to the governor for review
upon a showing that application of the secretary's authority may interfere with the successful functioning of that entity. The
governor's decision controls on appeal.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development;
members, appointment and expenses; meetings;
appointment and compensation of director
.
(a) The council for community and economic development,
within the West Virginia development office, is a body corporate
and politic, constituting a public corporation and government
instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be
appointed by the governor, with the advice and consent of the
Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the
utility industry, the mining industry, the telecommunications/data
processing industry, small business, labor, tourism or
agriculture. Provided, That One member appointed pursuant to this
subsection One such member shall be a member of a regional
planning and development council. Of the members representing
community or regional interests there shall be at least Of these
members at least three members from shall represent each
congressional district of the state and they shall be appointed
appointments shall be made in such a manner as to provide a broad
geographical distribution of members of the council;
(2) Four at-large members to be appointed by the governor
with the advice and consent of the Senate;
(3) One member to be appointed by the governor from a list of
two persons recommended by the speaker of the House of Delegates:
Provided, That on and after the effective date of the amendment
and reenactment of this section in the year two thousand three,
this subdivision shall be of no force or effect and the term of
the member previously appointed pursuant to this subdivision shall
expire;
(4) One member to be appointed by the governor from a list of
two persons recommended by the president of the Senate: Provided,
That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this
subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire;
(5) The president of the West Virginia economic development
council; and
(4) (6) The chair, or his or her designee, of the tourism
commission created pursuant to the provisions of section eight of
this article.
In addition, the president of the Senate and the speaker of
the House of Delegates, or his or her designee, shall serve as ex
officio nonvoting members.
(b) The governor shall appoint appoints the appointed members
of the council to four-year terms. Any A member whose term has
expired shall continues to serve until his or her the successor
has been is duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Except
as otherwise provided in this section, any member is eligible for
reappointment. In cases of any vacancy in the office of a member,
the vacancy shall be filled by A vacancy is filled by appointment
by the governor in the same manner as the original appointment.
A member appointed to fill a vacancy serves for the remainder of
the unexpired term.
(c) Members of the council are not entitled to compensation
compensated for services performed as members, but are entitled
to reimbursement for all receive reasonable and necessary expenses
actually incurred in the performance of their duties
in a manner
consistent with guidelines of the travel management office of the
department of administration.
A majority of the voting members
constitute a quorum for the purpose of conducting business. The
council shall elect its chair for a term to run concurrent with
the term of office of the member elected as chair. The chair is
eligible for successive terms in that position.
(d) The council governor shall employ appoint an executive
director of the West Virginia development office who is qualified
for the position by reason of his or her extensive education and
experience in the field of professional economic development. The
executive director shall serve at the will and pleasure of the
council governor. The salary of the director shall annually be
fixed by the council. The director shall have overall management
responsibility and administrative control and supervision within
the West Virginia development office. It is the intention of the Legislature that the director provide professional and technical
expertise in the field of professional economic and tourism
development in order to support the policy-making functions of the
council, but that the director not be a public officer, agent,
servant or contractor within the meaning of section thirty-eight,
article VI of the constitution of West Virginia and not be a
statutory officer within the meaning of section one, article two,
chapter five-f of this code. Subject to the provisions of the
contract provided in section four of this article, the director
may hire and fire economic development representatives employed
pursuant to the provisions of section five of this article.
(e) The executive director of the West Virginia development
office may promulgate rules to carry out the purposes and programs
of the West Virginia development office to include generally the
programs available and the procedure and eligibility of
applications relating to assistance under the programs. These
rules are not subject to the provisions of chapter twenty-nine-a
of this code, but shall be filed with the secretary of
state. The
executive director may adopt any of the rules previously
promulgated by the council for community and economic development.
§5B-2-3. Powers and duties of council for community and economic
development.
(a) The council for community and economic development shall
enhance economic growth and development through the development
of a comprehensive economic development strategy for West
Virginia. "Comprehensive economic development strategy" means a plan that outlines strategies and activities designed to continue,
diversify or expand the economic base of the state as a whole;
create jobs; develop a highly skilled work force; facilitate
business access to capital, including venture capital; advertise
and market the resources offered by the state with respect to the
needs of business and industry; facilitate cooperation among
local, regional and private economic development enterprises;
improve infrastructure on a state, regional and community level;
improve the business climate generally; and leverage funding from
sources other than the state, including federal and private
sources.
(b) The council shall develop a certified development
community program and provide funding assistance to the
participating economic development corporations or authorities
through a matching grant program. The council shall establish
criteria for awarding matching grants to the corporations or
authorities within the limits of funds appropriated by the
Legislature for the program. The matching grants to corporations
or authorities eligible under the criteria shall be in the amount
of thirty thousand dollars for each fiscal year, if sufficient
funds are appropriated by the Legislature. The West Virginia
development office shall recognize existing county, regional or
multicounty corporations or authorities where appropriate.
In developing its plan, the West Virginia development office
shall consider resources and technical support available through
other agencies, both public and private, including, but not limited to, the state college and university systems; the West
Virginia housing development fund; the West Virginia economic
development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table;
the West Virginia chamber of commerce; regional planning and
development councils; regional partnership for progress councils;
and state appropriations.
(c) The council shall promulgate rules to carry out the
purposes and programs of the West Virginia development office to
include generally the programs available, and the procedure and
eligibility of applications relating to assistance under the
programs. These rules are not subject to the provisions of
chapter twenty-nine-a of this code, but shall be filed with the
secretary of state. Any new rules promulgated by the council
shall be promptly submitted to the joint commission created in
article three of this chapter. The current rules shall be
submitted to the joint commission within thirty days of the
effective date of this section.
§5B-2-14. Certified development community program.
The certified development community program is continued and
is transferred to, incorporated in and administered as a program
of the West Virginia development office. The program shall
provide funding assistance to the participating economic
development corporations or authorities through a matching grant
program. The West Virginia development office shall establish
criteria for awarding matching grants to the corporations or authorities within the limits of funds appropriated by the
Legislature for the program. The matching grants to eligible
corporations or authorities are in the amount of thirty thousand
dollars for each fiscal year, if sufficient funds are appropriated
by the Legislature. The West Virginia development office shall
recognize existing county, regional or multicounty corporations
or authorities where appropriate.
In developing its plan, the West Virginia development office
shall consider resources and technical support available through
other agencies, both public and private, including, but not
limited to, the state college and university systems; the West
Virginia housing development fund; the West Virginia economic
development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table;
the West Virginia chamber of commerce; regional planning and
development councils; regional partnership for progress councils;
and state appropriations.
ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.
§5B-2E-3. Definitions.
As used in this article, unless the context clearly indicates
otherwise:
(1) "Agreement" means a tourism development agreement entered
into, pursuant to section six of this article, between the
development office and an approved company with respect to a
tourism development project.
(2) "Approved company" means any eligible company approved by the development office pursuant to section five of this article
seeking to undertake a tourism development project.
(3) "Approved costs" means:
(A) Included costs:
(i) Obligations incurred for labor and to vendors,
contractors, subcontractors, builders, suppliers, delivery persons
and material persons in connection with the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(ii) The costs of acquiring real property or rights in real
property and any costs incidental thereto;
(iii) The cost of contract bonds and of insurance of all
kinds that may be required or necessary during the course of the
acquisition, construction, equipping, installation or expansion
of a tourism development project which is not paid by the vendor,
supplier, delivery person, contractor or otherwise provided;
(iv) All costs of architectural and engineering services,
including, but not limited to: Estimates, plans and
specifications, preliminary investigations and supervision of
construction, installation, as well as for the performance of all
the duties required by or consequent to the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(v) All costs required to be paid under the terms of any
contract for the acquisition, construction, equipping,
installation or expansion of a tourism development project;
(vi) All costs required for the installation of utilities,
including, but not limited to: Water, sewer, sewer treatment,
gas, electricity, communications and off-site construction of
utility extensions to the boundaries of the real estate on which
the facilities are located, all of which are to be used to improve
the economic situation of the approved company in a manner that
allows the approved company to attract persons; and
(vii) All other costs comparable with those described in this
subdivision;
(B) Excluded costs. -- The term "approved costs" does not
include any portion of the cost required to be paid for the
acquisition, construction, equipping and installation or expansion
of a tourism development project that is financed with
governmental incentives, grants or bonds or for which the eligible
taxpayer elects to qualify for other tax credits, including, but
not limited to, those provided by article thirteen-q, chapter
eleven of this code.
(4) "Base tax revenue amount" means the average monthly
amount of consumer sales and service tax collected by an approved
company, based on the twelve-month period ending immediately prior
to the opening of a new tourism development project for business,
as certified by the state tax commissioner.
(5) "Council" means the council for community and economic
development as provided in article two of this chapter.
(6) "Development office" means the West Virginia development
office as provided in article two of this chapter.
(7) (6) "Crafts and products center" means a facility
primarily devoted to the display, promotion and sale of West
Virginia products and at which a minimum of eighty percent of the
sales occurring at the facility are of West Virginia arts, crafts
or agricultural products.
(8) (7) "Eligible company" means any corporation, limited
liability company, partnership, limited liability partnership,
sole proprietorship, business trust, joint venture or any other
entity operating or intending to operate a tourism development
project, whether owned or leased, within the state that meets the
standards required by the council development office. An eligible
company may operate or intend to operate directly or indirectly
through a lessee.
(9) (8) "Entertainment destination center" means a facility
containing a minimum of two hundred thousand square feet of
building space adjacent or complementary to an existing tourism
attraction, an approved tourism development project or a major
convention facility and which provides a variety of entertainment
and leisure options that contain at least one major theme
restaurant and at least three additional entertainment venues,
including, but not limited to, live entertainment, multiplex
theaters, large-format theaters, motion simulators, family
entertainment centers, concert halls, virtual reality or other
interactive games, museums, exhibitions or other cultural and
leisure time activities. Entertainment and food and drink options
shall occupy a minimum of sixty percent of total gross area, as defined in the application, available for lease and other retail
stores shall occupy no more than forty percent of the total gross
area available for lease.
(10) (9) "Final approval" means the action taken by the
council executive director of the development office qualifying
the eligible company to receive the tax credits provided in this
article.
(11) (10) "Preliminary approval" means the action taken by
the executive director of the development office conditioning
final approval. by the council
(12) (11) "State agency" means any state administrative body,
agency, department, division, board, commission or institution
exercising any function of the state that is not a municipal
corporation or political subdivision.
(13) (12) "Tourism attraction" means a cultural or historical
site, a recreation or entertainment facility, an area of natural
phenomenon or scenic beauty, a West Virginia crafts and products
center or an entertainment destination center. A tourism
development project or attraction shall does not include any of
the following:
(A) Lodging facilities facility, unless:
(i) The facilities constitute facility constitutes a portion
of a tourism development project and represent represents less
than fifty percent of the total approved cost of the tourism
development project, or the facilities are facility is to be
located on recreational property owned or leased by the state or federal government and the facilities have facility has received
prior approval from the appropriate state or federal agency.
(ii) The facilities involve facility involves the restoration
or rehabilitation of a structure that is listed individually in
the national register of historic places or are is located in a
national register historic district and certified by the state
historic preservation officer as contributing to the historic
significance of the district, and the rehabilitation or
restoration project has been approved in advance by the state
historic preservation officer; or
(iii) The facilities involve facility involves the
construction, reconstruction, restoration, rehabilitation or
upgrade of a full-service lodging facility or the reconstruction,
restoration, rehabilitation or upgrade of an existing structure
into a full-service lodging facility having not less than five
hundred guest rooms, with construction, reconstruction,
restoration, rehabilitation or upgrade costs exceeding ten million
dollars;
(B) Facilities that are A facility that is primarily devoted
to the retail sale of goods, other than an entertainment
destination center, a West Virginia crafts and products center or
a tourism development project where the sale of goods is a
secondary and subordinate component of the project; and
(C) Recreational facilities that do A recreational facility
that does not serve as a likely destination where individuals who
are not residents of the state would remain overnight in commercial lodging at or near the new tourism development project
or existing attraction.
(14) (13) "Tourism development project" means the
acquisition, including the acquisition of real estate by a
leasehold interest with a minimum term of ten years, construction
and equipping of a tourism attraction; the construction and
installation of improvements to facilities necessary or desirable
for the acquisition, construction, installation or expansion of
a tourism attraction, including, but not limited to, surveys,
installation of utilities, which may include water, sewer, sewage
treatment, gas, electricity, communications and similar
facilities; and off-site construction of utility extensions to the
boundaries of the real estate on which the facilities are located,
all of which are to be used to improve the economic situation of
the approved company in a manner that allows the approved company
to attract persons.
(15) (14) "Tourism development project tax credit" means the
tourism development project tax credit allowed by section seven
of this article.
§5B-2E-4. Additional powers and duties of the development office.
The development office has the following powers and duties,
in addition to those set forth in this case, necessary to carry
out the purposes of this article including, but not limited to:
(1) Make preliminary and final approvals of all applications
for tourism development projects and enter into agreements
pertaining to tourism development projects with approved companies;
(2) Employ fiscal consultants, attorneys, appraisers and
other agents as the executive director of the development office
finds necessary or convenient for the preparation and
administration of agreements and documents necessary or incidental
to any tourism development project; and
(3) Impose and collect fees and charges in connection with
any transaction.
§5B-2E-5. Tourism development project application; evaluation
standards; consulting services; preliminary and
final approval of projects; limitation of amount
annual tourism development project tax credit.
(a) Each eligible company that seeks to qualify a tourism
development project for the tax credit provided by this article
must file a written application for approval of the project with
the development office.
(b) With respect to each eligible company making an
application to the development office for the tourism development
project tax credit, the development office shall make inquiries
and request documentation, including a completed application, from
the applicant that shall include: A description and location of
the project; capital and other anticipated expenditures for the
project and the sources of funding therefor; the anticipated
employment and wages to be paid at the project; business plans
that indicate the average number of days in a year in which the
project will be in operation and open to the public; and the anticipated revenues and expenses generated by the project.
(c) Based upon a review of the application and additional
documentation provided by the eligible company, if the executive
director of the development office determines that the applicant
and the tourism development project may reasonably satisfy the
criteria for final approval set forth in subsection (d) of this
section, then the director of the development office may grant a
preliminary approval of the applicant and the tourism development
project.
(d) After preliminary approval by the executive director of
the development office, the development office shall engage the
services of a competent consulting firm or firms to analyze the
data made available by the applicant and to collect and analyze
additional information necessary to determine that, in the
independent judgment of the consultant, the tourism development
project:
(1) Likely will attract at least twenty-five percent of its
visitors from outside of this state;
(2) Will have approved costs in excess of one million
dollars;
(3) Will have a significant and positive economic impact on
the state considering, among other factors, the extent to which
the tourism development project will compete directly with or
complement existing tourism attractions in the state and the
amount by which increased tax revenues from the tourism
development project will exceed the credit given to the approved company;
(4) Will produce sufficient revenues and public demand to be
operating and open to the public for a minimum of one hundred days
per year; and
(5) Will provide additional employment opportunities in the
state.
(e) The applicant shall pay to the development office, prior
to the engagement of the services of a competent consulting firm
or firms pursuant to the provisions of subsection (d) of this
section, for the cost of the consulting report or reports and
shall cooperate with the consulting firm or firms to provide all
of the data that the consultant considers necessary or convenient
to make its determination under subsection (d) of this section.
(f) The executive director of the development office, within
thirty days following receipt of the consultant's report or
reports, shall decide whether to recommend the tourism development
project to the council for final approval. If the director of the
development office recommends the tourism development project to
the council, he or she shall submit the project application, the
consulting report or reports and other information regarding the
project to the council.
(g) The council shall review all applications properly
submitted to the council for conformance to statutory and
regulatory requirements, review, in light of the consultant's
report or reports, the reasonableness of the project's budget and
timetable for completion and, in addition to the criteria for final approval set forth in subsection (d) of this section, the
following criteria:
(1) The quality of the proposed tourism development project
and how it addresses economic problems in the area in which the
tourism development project will be located;
(2) Whether there is substantial and credible evidence that
the tourism development project is likely to be started and
completed in a timely fashion;
(3) Whether the tourism development project will, directly or
indirectly, improve the opportunities in the area where the
tourism development project will be located for the successful
establishment or expansion of other industrial or commercial
businesses;
(4) Whether the tourism development project will, directly or
indirectly, assist in the creation of additional employment
opportunities in the area where the tourism development project
will be located;
(5) Whether the project helps to diversify the local economy;
(6) Whether the project is consistent with the goals of this
article;
(7) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(8) The ability of the eligible company to carry out the
tourism development project.
(h) (g) The council development office may establish other
criteria for consideration when approving the applications.
(i) (h) The council executive director of the development
office may give its final approval to the applicant's application
for a tourism development project and may grant to the applicant
the status of an approved company: Provided, That the total
amount of tourism development project tax credits for all approved
companies may not exceed one million five hundred thousand dollars
each calendar year. The council executive director of the
development office shall act to approve or not approve any
application within thirty sixty days following the receipt of the
application consultant's report or reports or the receipt of any
additional information requested by the council development
office, whichever is later. The decision by the executive
director of the development office and the council is final.
§5B-2E-6. Agreement between development office and approved
company.
The development office, upon grant of the council's final
approval of an application by the executive director, may enter
into an agreement with any approved company with respect to its
tourism development project. The terms and provisions of each
agreement shall include, but not be limited to:
(1) The amount of approved costs of the project that qualify
for the sales tax credit, provided for in section seven of this
article. Within three months of the completion date, the approved
company shall document the actual cost of the project through a
certification of the costs to the development office by an
independent certified public accountant acceptable to the development office; and
(2) A date certain by which the approved company shall have
completed and opened the tourism development project to the
public. Any approved company that has received final approval may
request and the development office may grant an extension or
change, however, in no event shall the extension exceed three
years from the date of final approval to the completion date
specified in the agreement with the approved company.
§5B-2E-9. Promulgation of rules.
The council executive director of the development office may
promulgate rules to implement the tourism development project
application approval process and to describe the criteria and
procedures it has established in connection therewith. These
rules are not subject to the provisions of chapter twenty-nine-a
of this code but shall be filed with the secretary of state.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-4. West Virginia public energy authority continued; West
Virginia public energy board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
authority; appointment.
(a)The West Virginia public energy authority heretofore
created is hereby is continued. The authority is a governmental
instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the carrying out of its purposes and duties are determined to be
essential governmental functions and for a public purpose.
(b)The authority shall be is controlled, managed and
operated by a nine-member seven-member board known as the West
Virginia public energy authority board, which is hereby continued.
The nine members of the board shall be
seven members include the
governor or designee; the secretary of the department of
environmental protection or designee; the director of the economic
development authority or designee; and four members representing
the general public
. The public members are appointed by the
governor, by and with the advice and consent of the Senate, for
terms of one, two, three and four years, respectively. Two
members shall be appointed to serve a term of two years; two
members shall be appointed to serve a term of three years; two
members shall be appointed to serve a term of four years; two
members shall be appointed to serve a term of five years; and one
member shall be appointed to serve a term of six years.
(c) On the thirty-first day of March, two thousand five, the
terms of all appointed members, appointed prior to the amendment
of this section during the first extraordinary session of the
seventy-seventh Legislature, expire. Not later than the
thirty-first day of March, two thousand five, the governor
appoints the public members required in subsection (b) of this
section, to assume the duties of the office immediately, pending
the advice and consent of the Senate.
(d) The successor of each such appointed member shall be is appointed for a term of five years, except that any person
appointed to fill a vacancy occurring prior to the expiration of
the term for which his predecessor was appointed shall be
appointed only for the remainder of such term four-year term.
A
vacancy is filled by appointment by
the governor in the same
manner as the original appointment. A member appointed to fill
a vacancy serves for the remainder of the unexpired term.
Each
board member shall serve serves until a until the appointment of
his successor is appointed.
(e) No more than five three of the public board members shall
may at any one time belong to the same political party. No more
than four two public members of the board shall may be employed
by or associated with any industry this the authority is empowered
to affect. Two members of the board One member shall be persons
who have a person with significant experience in the advocacy of
environmental protection. Board members may be reappointed to
serve additional terms.
(f) All members of the board shall be citizens of the state.
Before entering upon his or her engaging in their duties, each
member of the board shall comply with the requirements of article
one, chapter six of this code and give bond in the sum of
twenty-five thousand dollars in the manner provided in article two
of said chapter. The governor may remove any board member for
cause as provided in article six of said chapter.
(g) Annually the The governor serves as chair. The board
shall elect annually elects one of its public members as chairman and another as vice chairman vice chair, and shall appoint
appoints a secretary-treasurer who need not be a member of the
board.
(h) Five Four members of the board shall constitute a quorum
and the affirmative vote of the majority of members present at any
meeting shall be is necessary for any action taken by vote of the
board. No A vacancy in the membership of the board shall does not
impair the rights of a quorum by such vote to exercise all the
rights and perform all the duties of the board and the authority.
(i) The person appointed as secretary-treasurer, including a
board member if he is so appointed, shall give bond in the sum of
fifty thousand dollars in the manner provided in article two,
chapter six of this code.
(j) Each public member of the board shall receive receives
the same compensation and expense reimbursement as is paid to
members of the Legislature for their interim duties as recommended
by the citizens legislative compensation commission and authorized
by law for each day or portion thereof engaged in the discharge
of official duties. All such expenses incurred by the board shall
be are payable solely from funds of the authority or from funds
appropriated to the authority for such purpose by the Legislature.
and no liability Liability or obligation shall be is not incurred
by the authority beyond the extent to which moneys are available
from funds of the authority or from such appropriations.
(k) There shall also be a director of the authority appointed
by the
The governor may appoint an executive director, with the advice and consent of the Senate, who shall serve serves at the
governor's will and pleasure who shall be for a term of four
years. The director is responsible for managing and administering
the daily functions of the authority and for performing any and
all other functions necessary or helpful to the effective
functioning operation of the authority. together with all other
functions and powers as may be delegated by the board.
If the
governor removes the executive director prior to the expiration
of the term, the authority, without the vote of the chair, shall
fill the vacancy for the remainder of the unexpired term in the
same manner as the original appointment, but may not reappoint the
individual removed by the governor.
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The West Virginia public energy authority is hereby granted
has and may exercise all powers necessary or appropriate to carry
out and effectuate execute its corporate purpose. The authority
shall have the power and capacity to may:
(1) Adopt, and from time to time amend and repeal:
(A) Bylaws necessary and proper for the regulation of its
affairs and the conduct of its business and rules to implement and
make effective its powers and duties, such rules to be promulgated
in accordance with the provisions of chapter twenty-nine-a of this
code.
(2) Adopt and use an official seal and alter the same at
pleasure.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under this article. Any actions
against the authority shall be brought in the circuit court of
Kanawha County.
(5) Foster, encourage and promote the mineral development
industry. The authority is encouraged to maximize the use of the
West Virginia mineral development industry, but is not prohibited
from utilizing nonstate mineral resources.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
industry.
(8) Acquire, whether by purchase, construction, gift, lease,
lease-purchase or otherwise, any electric power project or natural
gas transmission project. In the event that an electric power
project to be constructed pursuant to this article is designed to
utilize coal wastes for the generation of electricity or the
production of other energy, such project shall also be capable of
using coal as its primary energy input: Provided, That it shall
be demonstrated to the authority's satisfaction that quantities
of coal wastes exist in amounts sufficient to provide energy input for such project for the term of the bonds or notes issued by the
authority to finance the project and are accessible to the
project.
(9) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of,
to persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon such terms and conditions as the
public energy authority board may deem advisable.
(10) Finance one or more electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition,
by purchase, construction or otherwise, of any such project or
projects.
(11) Issue bonds for the purpose of financing the cost of
acquisition and construction of one or more electric power
projects or natural gas transmission projects or any additions,
extensions or improvements thereto which will be sold, leased with
an option by the lessee to purchase, leased or otherwise disposed
of to persons other than governmental agencies or for the purpose
of loaning the proceeds thereof to persons other than governmental
agencies for the acquisition and construction of said projects or
both. Such bonds shall be issued and the payment of such bonds
secured in the manner provided by the applicable provisions of
sections seven, eight, nine, ten, eleven, twelve, thirteen and
seventeen, article two-c, chapter thirteen of this code: Provided, That the principal and interest on such bonds shall be
payable out of the revenues derived from the lease, lease with an
option by the lessee to purchase, sale or other disposition of or
from loan payments in connection with the electric power project
or natural gas transmission project for which the bonds are
issued, or any other revenue derived from such electric power
project or natural gas transmission project.
(12) In the event that the electric power project or natural
gas transmission project is to be owned by a governmental agency,
apply to the economic development authority for the issuance of
bonds payable solely from revenues as provided in article fifteen,
chapter thirty-one of this code: Provided, That the economic
development authority shall not issue any such bonds except by an
act of general law: Provided, however, That the authority shall
require that in the construction of any such project, prevailing
wages shall be paid as part of a project specific agreement which
also takes into account terms and conditions contained in the West
Virginia - Ohio valley market retention and recovery agreement or
a comparable agreement.
(13) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(14) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such real property or parts thereof or rights therein, rights-of-way, property,
rights, easements and interests it deems necessary for carrying
out the provisions of this article, and compensation shall be paid
for public or private lands so taken; and the authority may sell
any of the real property or parts thereof or rights therein,
rights-of-way, property, rights, easements and interests acquired
hereunder in such manner and upon such terms and conditions as the
authority deems proper: Provided, That if the authority
determines that land or an interest therein acquired by the
authority through the exercise of the power of eminent domain for
the purpose of this article is no longer necessary or useful for
such purposes, and if the authority desires to sell such land or
interest therein, the authority shall first offer to sell such
land or interest to the owner or owners from whom it was acquired,
at a price equal to its fair market value: Provided, however,
That if the prior owner or owners shall decline to reacquire the
land or interest therein, the authority shall be authorized to
dispose of such property by direct sale, auction, or competitive
bidding. In no case shall such land or an interest therein
acquired under this subdivision be sold for less than its fair
market value. This article does not authorize the authority to
take or disturb property or facilities belonging to any public
utility or to a common carrier, which property or facilities are
required for the proper and convenient operation of such public
utility or common carrier, except for the acquisition of easements
or rights-of-way which will not unreasonably interfere with the operation of the property or facilities of such public utility or
common carrier, and in the event of the taking or disturbance of
property or facilities of public utility or common carrier,
provision shall be made for the restoration, relocation or
duplication of such property or facilities elsewhere at the sole
cost of the authority.
The term "real property" as used in this article is defined
to include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said term, and
includes also any and all interests in such property less than
full title, such as easements, rights-of-way, uses, leases,
licenses and all other incorporeal hereditaments and every estate,
interest or right, legal or equitable, including terms for years
and liens thereon by way of judgments, mortgages or otherwise, and
also all claims for damages for such real estate.
For the purposes of this section "fair market value" shall be
determined by an appraisal made by an independent person or firm
chosen by the authority. The appraisal shall be performed using
the principles contained in the "Uniform Appraisal Standards for
Federal Land Acquisitions" published under the auspices of the
interagency land acquisition conference, United States government
printing office, 1972.
(15) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers: Provided, That if any electric power project or natural gas transmission project is
to be constructed by a person other than a governmental agency,
and with whom the authority has contracted to lease, sell or
finance such project upon its completion, then the authority shall
not be required to comply with the provisions of article
twenty-two, chapter five of this code requiring the solicitation
of competitive bids for the construction of such a project.
(16) Employ managers, superintendents and other employees,
and retain or contract with consulting engineers, financial
consultants, accountants, architects, attorneys, and such other
consultants and independent contractors as are necessary in its
judgment to carry out the provisions of this article, and fix the
compensation or fees thereof. All expenses thereof shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or
loan payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated for such
purpose by the Legislature.
(17) Receive and accept from any federal agency, or any other
source, grants for or in aid of the construction of any project
or for research and development with respect to electric power
projects, natural gas transmission projects or other energy
projects, and receive and accept aid or contribution from any
source of money, property, labor or other things of value to be
held, used and applied only for the purpose for which such grants
and contributions are made.
(18) Purchase property coverage and liability insurance for
any electric power project or natural gas transmission project or
other energy project and for the principal office and suboffices
of the authority, insurance protecting the authority and its
officers and employees against liability, if any, for damage to
property or injury to or death of persons arising from its
operations and any other insurance which may be provided for under
a resolution authorizing the issuance of bonds or in any trust
agreement securing the same.
(19) Charge, alter and collect transportation fees and other
charges for the use or services of any natural gas transmission
project as provided in this article.
(20) Charge and collect fees or other charges from any energy
project undertaken as a result of this article.
(21) When the electric power project is owned and operated by
the authority, charge reasonable fees in connection with the
making and providing of electric power and the sale thereof to
corporations, states, municipalities or other entities in the
furtherance of the purposes of this article.
(22) Purchase and sell electricity or other energy produced
by an electric power project in and out of the state of West
Virginia.
(23) Enter into wheeling contracts for the transmission of
electric power over the authority's or another party's lines.
(24) Make and enter into contracts for the construction of a
project facility and joint ownership with another utility, and the provisions of this article shall not constrain the authority from
participating as a joint partner therein.
(25) Make and enter into joint ownership agreements.
(26) Establish or increase reserves from moneys received or
to be received by the authority to secure or to pay the principal
of and interest on the bonds issued by the economic development
authority pursuant to the provisions of article fifteen, chapter
thirty-one of this code or bonds issued by the authority.
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution
company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the public service commission of West Virginia.
(28) Engage in market research, feasibility studies,
commercial research, and other studies and research pertaining to
electric power projects and natural gas transmission projects or
any other functions of the authority pursuant to this article.
(29) Enter upon any lands, waters and premises in the state
for the purpose of making surveys and examinations as it may deem
necessary or convenient for the purpose of this article, and such
entry shall not be deemed a trespass, nor shall an entry for such
purposes be deemed an entry under any condemnation proceedings
which may be then pending, and the authority shall make
reimbursement for any actual damages resulting to such lands,
waters and premises as a result of such activities.
(30) Participate in any reorganization proceeding pending pursuant to the United States Code (being the act of Congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question
pending therein, which requires the approval of the creditors
participating in any reorganization proceeding or receivership,
exchange any evidence of such indebtedness for any property,
security or evidence of indebtedness offered as a part of the
reorganization of such responsible buyer or responsible tenant or
of any entity formed to acquire the assets thereof and may
compromise or reduce the amount of any indebtedness owing to it
as a part of any such reorganization.
(31) Make or enter into management contracts with a second
party or parties to operate any electric power project or any gas
transmission project and associated facilities, or other related
energy project, either during construction or permanent operation.
(32) Do all acts necessary and proper to carry out the powers
expressly granted to the authority in this article.
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34) The authority shall, after consultation with other
agencies of state government having environmental regulatory functions, promulgate legislative rules pursuant to chapter
twenty-nine-a of this code, to establish standards and principles
to be applied to all projects in assessing the effects of projects
on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the
National Environmental Policy Act of 1969, a copy of the
environmental impact statement shall be filed with the authority
and be made available prior to any final decision or final
approval of any project and prior to the conducting of any public
hearings regarding the project, and in any such case, no
assessment pursuant to the legislative rule need be made.
(35) The power and authority granted to the public energy
authority pursuant to this section and section six of this article
to initiate, acquire, construct, finance or issue bonds for
electric power projects and transmission facilities, or to
exercise the power of eminent domain with respect to any project,
shall terminate on the effective date of this section: Provided,
That nothing herein shall be construed to affect the validity of
any act of the public energy authority prior to the effective date
of this section or to impair the rights of bondholders with
respect to bonds or other evidence of indebtedness issued prior
to the effective date of this section. Following the effective
date of this section, the public energy authority may exercise any
power expressly granted pursuant to this section or section six
of this article with respect to any project or facility previously
constructed or acquired, any existing contractual obligations, and any outstanding bonded indebtedness.
§5D-1-24. Continuation of board.
The West Virginia public energy authority board shall
continue to exist, pursuant to the provisions of article ten,
chapter four of this code, until the first day of July, two
thousand ten, unless sooner terminated, continued or reestablished
pursuant to the provisions of that article.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments created; offices of secretary
created.
(a) There are created, within the executive branch of the
state government, the following departments:
(1) Department of administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health and human resources;
(5) Department of military affairs and public safety;
(6) Department of tax and revenue; and
(7) Department of transportation; and
(8) Department of commerce.
(b) Each department will be headed by a secretary appointed
by the governor with the advice and consent of the Senate. Each
secretary serves at the will and pleasure of the governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for
in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for
in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen of this code and
article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for
in article twenty-three,
chapter twenty-nine of this code;
(8) Public defender services provided for
in article
twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for
in article six, chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for
in
article two, chapter six-b of this code; and
(11) Consolidated public retirement board provided for
in
article ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are abolished. For
purposes of administrative support and liaison with the office of
the governor, the following agencies and boards, including all
allied, advisory and affiliated entities, are grouped under two
bureaus and one commission as follows The following agencies and
boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board,
are transferred to and incorporated in and administered as a part
of the department of commerce:
(1) Bureau of commerce:
(A) Division of labor provided for
in article one, chapter
twenty-one of this code, which includes:
(i) (A) Occupational safety and health review commission
provided for
in article three-a, chapter twenty-one of this code;
and
(ii) (B) Board of manufactured housing construction and
safety provided for
in article nine, chapter twenty-one of this
code;
(B) (2) Office of miners' health, safety and training provided for
in article one, chapter twenty-two-a of this code.
The following boards are transferred to the office of miners'
health, safety and training for purposes of administrative support
and liaison with the office of the governor:
(i) (A) Board of coal mine health and safety and coal mine
safety and technical review committee provided for
in article six,
chapter twenty-two-a of this code;
(ii) (B) Board of miner training, education and certification
provided for
in article seven, chapter twenty-two-a of this code;
and
(iii) (C) Mine inspectors' examining board provided for
in
article nine, chapter twenty-two-a of this code;
(C) (3) The West Virginia development office, provided for
in
article two, chapter five-b of this code, which includes: the
(i) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(ii) Tourism commission provided for
in article two, chapter
five-b of this code; and the office of the tourism commissioner;
(D) (4) Division of natural resources and natural resources
commission provided for
in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for
in
article eight, chapter twenty-nine of this code is under the
division of natural resources;
(E) (5) Division of forestry provided for
in article one-a,
chapter nineteen of this code; and
(F) (6) Geological and economic survey provided for
in article two, chapter twenty-nine of this code;.
(c) The economic development authority provided for in
article fifteen, chapter thirty-one of this code is continued as
an independent agency within the executive branch.
(G) (d) The water development authority and board provided
for
in article one, chapter twenty-two-c of this code
is continued
as an independent agency within the executive branch.
(2) (e) Bureau of employment programs provided for
in article
one, chapter twenty-one-a of this code is continued as an
independent agency within the executive branch.
(3) (f) Workers' compensation commission provided for
in
article one, chapter twenty-three of this code is continued as an
independent agency within the executive branch.
(c) (g) Bureau of environment is abolished and the following
agencies and boards, including all allied, advisory and affiliated
entities, are transferred to the department of environmental
protection for purposes of administrative support and liaison with
the office of the governor:
(1) Air quality board provided for
in article two, chapter
twenty-two-b of this code;
(2) Solid waste management board provided for
in article
three, chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board,
provided for
in article three, chapter twenty-two-b of this code;
(4) Surface mine board provided for
in article four, chapter
twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for
in
article seven, chapter twenty-two-c of this code;
(6) Shallow gas well review board provided for
in article
eight, chapter twenty-two-c of this code; and
(7) Oil and gas conservation commission provided for
in
article nine, chapter twenty-two-c of this code.
(d) (h) The
following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
education and the arts:
(1) Library commission provided for
in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for
in
article five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(4) (3) Division of culture and history provided for
in
article one, chapter twenty-nine of this code;
(4) (5) Division of rehabilitation services provided for
in
section two, article ten-a, chapter eighteen of this code.
(e) (i) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau for public health provided for in article one,
chapter sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health care authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty,
chapter twenty-nine of this code; and
(8) The child support enforcement division provided for in
chapter forty-eight of this code.
(f) (j) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(g) (k) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code.;
(9)
The state budget office, formerly known as the budget
section of the finance division, department of administration,
previously provided for in article two, chapter five-a of this
code and now provided for in article two of this chapter;
(10) The municipal bond commission provided for in article
three, chapter thirteen of this code;
(11) The office of tax appeals provided for in article ten-a,
chapter eleven of this code; and
(12) The state athletic commission provided for in article
five-a, chapter twenty-nine of this code;
(h) (l) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(i) (m) Except for powers, authority and duties that have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency are not affected by the enactment of this chapter.
(j) (n) Except for powers, authority and duties that have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of the boards are not affected by the
enactment of this chapter and all boards which are appellate
bodies or were otherwise established to be independent decision
makers will not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(k) (o) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments means
a division of the appropriate department. Wherever reference is
made to any department transferred to and incorporated in a
department created in section two, article one of this chapter,
the reference means a division of the appropriate department and
any reference to a division of a department so transferred and
incorporated means a section of the appropriate division of the
department.
(l) (p) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer is solely for
purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus
created by the Legislature upon the abolishment of the department
of commerce, labor and environmental resources in the year one
thousand nine hundred ninety-four will be headed by a commissioner
or other statutory officer of an agency within that bureau Nothing
in this section extends the powers of department secretaries under
section two of this article to any person other than a department
secretary and nothing limits or abridges the statutory powers and
duties of statutory commissioners or officers pursuant to this
code.
(m) The amendments to this section effected by the enactment
of Enrolled Senate Bill No. 2013 in the year two thousand three
shall become operative on the first day of October, two thousand
three.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary
power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
such employees as may be necessary to carry out the functions of
the secretary, which employees shall serve at the will and
pleasure of the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
governor, and transfer within the department funds appropriated
to the various agencies of the department which are not expended
due to cost savings resulting from the implementation of the
provisions of this chapter: Provided, That no more than
twenty-five percent of the funds appropriated to any one agency
or board may be transferred to other agencies or boards within the
department: Provided, however, That no funds may be transferred
from a special revenue account, dedicated account, capital
expenditure account or any other account or funds specifically
exempted by the Legislature from transfer, except that the use of
appropriations from the state road fund transferred to the office
of the secretary of the department of transportation is not a use
other than the purpose for which such funds were dedicated and is
permitted: Provided further, That if the Legislature by
subsequent enactment consolidates agencies, boards or functions,
the secretary may transfer the funds formerly appropriated to such
agency, board or function in order to implement such consolidation. The authority to transfer funds under this section
shall expire on the thirtieth day of June, one thousand nine
hundred eighty-nine two thousand six;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligating of public funds as authorized by law: Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers heretofore granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or
character, and convey or dispose of any property of whatever kind
or character as authorized by law: Provided, That the powers
granted to the secretary to lease, purchase, convey or dispose of
such property shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make
effective the powers, authority and duties granted and imposed by
the provisions of this chapter, such promulgation to be in
accordance with the provisions of chapter twenty-nine-a of this
code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter
twenty-nine-a of this code, by any administrator, agency or board
within the department, without which written consent no proposal
of a rule shall have any force or effect;
(13) Delegate to administrators such duties of the secretary
as the secretary may deem appropriate from time to time to
facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use of
the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation of state government publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost effective purchasing procedures, including
consideration of means by which domestic businesses may be
assisted to compete for state government purchases; and
(6) The computerization of the functions of the state
agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
such program, and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five
and six, section ten, article six, chapter twenty-nine of this
code shall be limited to the organizational unit within the agency
or board and within the occupational group established by the classification and compensation plan for the classified service
of the agency or board in which the employee was employed prior
to the agency or board's transfer or incorporation into the
department: Provided, That the employee shall possess the
qualifications established for the job class. The duration of
recall rights provided in this subsection shall be limited to two
years or the length of tenure, whichever is less. Except as
provided in this subsection, nothing contained in this section
shall be construed to abridge the rights of employees within the
classified service of the state as provided in sections ten and
ten-a, article six, chapter twenty-nine of this code or the right
of classified employees of the board of regents to the procedures
and protections set forth in article twenty-six-b, chapter
eighteen of this code.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter
five-b of this code;
(2) "County commission" means the governing body of a county
of this state;
(3) (2) "Development expenditures" means payments for
governmental functions, programs, activities, facility
construction, improvements and other goods and services which a district board is authorized to perform or provide under section
five of this article;
(4) (3) "District" means an economic opportunity development
district created pursuant to this article;
(5) (4) "District board" means a district board created
pursuant to section ten of this article; and
(6) (5) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article.
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an
economic opportunity development district shall conduct a public
hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty
days prior to the scheduled hearing. In addition to the time and
place of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that
may be imposed upon sales of tangible personal property and taxable services from business locations situated within the
proposed district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the county commission shall afford the
opportunity to be heard to any owner of real property situated in
the proposed district and any residents of the county.
(d) Application to council West Virginia development office.
-- If the county commission, following the public hearing,
determines it advisable and in the public interest to establish
an economic opportunity development district, it shall apply to
the council for community and economic development West Virginia
development office for approval of the economic opportunity
development district project pursuant to the procedures provided
in section seven of this article.
§7-22-7. Application to development office for approval of an
economic opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed
with it by county commissions pursuant to section six of this
article. Each application must include:
(1) A true copy of the notice described in section six of
this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements, additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its
inception: Provided, That the amounts of the reserves shall not
exceed the amounts that would be required by ordinary commercial
capital market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the county
commission to the funding of development expenditures;
(8) Identification of any businesses that the county
commission expects to relocate their business locations from the
district to another place in the state in connection with the
establishment of the district or from another place in this state
to the district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the county commission expects to continue doing business there after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain
in the district, for the twelve full calendar months next
preceding the date of the application: Provided, That for
purposes of this article, the aggregate amount is designated as
"the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after
the month in which the tax commissioner would first begin to
collect that tax; and (iii) the estimated amount of economic
opportunity district excise tax that will be collected during the
first thirty-six months after the month in which the tax commissioner would first begin to collect that tax; and
(14) Any additional information the council development
office may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory
and regulatory requirements, the reasonableness of the project's
budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be
located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity district excise tax
dollars will leverage or be the catalyst for the effective use of
private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities, in the area where the project will be located, for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities
in the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the county commission has a strategy for economic
development in the county and whether the project is consistent
with that strategy;
(10) Whether the project helps to diversify the local
economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the county commission and the project
developer or project team to carry out the project: Provided,
That no project may be approved by the council development office
unless the amount of all development expenditures proposed to be
made in the first twenty-four months following the creation of the
district results in capital investment of more than fifty million
dollars in the district and the county submits clear and
convincing information, to the satisfaction of the council development office, that such investment will be made if the
council development office approves the project and the
Legislature authorizes the county commission to levy an excise tax
on sales of goods and services made within the economic
opportunity district as provided in this article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the
receipt of any additional information requested by the council
development office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a county's economic opportunity district project
application, it he or she shall issue to the county commission a
written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council for
community and economic development office requests from the tax
commissioner and the tax commissioner provides to the council
development office: Provided, That in determining the net annual
district tax revenue amount, the council development office may
not use a base tax revenue amount less than that amount certified
by the tax commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the county
commission pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a county's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council
development office requests from the tax commissioner and the tax
commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue
amount, the council development office may not use a base tax
revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the county
commission pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and
economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be
filed with the secretary of state.
§7-22-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account
and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account
for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§7-22-10. Ordinance to create district as approved by
development office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council executive
director of the development office and the levying of a special
district excise tax for the district has been authorized by the
Legislature, all in accordance with this article, the county
commission may create the district by order entered of record as
provided in article one of this chapter: Provided, That the county commission may not amend, alter or change in any manner the
boundaries of the economic opportunity development district
authorized by the Legislature. In addition to all other
requirements, the order shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all
things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of
this article;
(D) To amend or supplement any contracts or leases or to
enter into new, additional or further contracts or leases upon the
terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the
district board and any person, agency, government entity, agency
or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of
its officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations
and contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or
construction or in any other lawful manner and hold title thereto
in its own name and to sell, lease or otherwise dispose of all or
part of any real property which it may own, either by contract or
at public auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms
as the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to
any entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and
use, in the public interest and for the general welfare of the
people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of
unemployment existing within the state.
(b) Additional contents of order. -- The county commission's
order shall also state the general intention of the county
commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an
order establishing an economic opportunity development district
excise tax, a certified copy of the order shall be mailed to the
state auditor, as ex officio the chief inspector and supervisor
of public offices, the state treasurer and the tax commissioner.
§7-22-11. District board; duties.
(a) General. -- The county commission of a county that has
been authorized by the Legislature to establish an economic
opportunity development district, in accordance with this article,
shall provide, by order entered of record, for the appointment of
a district board to oversee the operations of the district:
Provided, That the county commission may, by order, in lieu of
appointing a separate district board, designate itself to act as
the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members,
two of which shall be owners, or representatives of owners, of
real property situated in the economic opportunity development
district and the other five shall be residents of the county
within which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the order creating the district, shall submit
an annual report to the county commission and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this
article prohibits any member of the district board from also
serving on the board of directors of a nonprofit corporation with
which the county commission may contract to provide specified
services within the district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services
on the board in the amount determined by the county commission: Provided, That when a district board is not created for the
district but the work of the board is done by the county
commission, the county commissioners shall receive no additional
compensation.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized
by the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
order entered of record, impose that tax on the privilege of
selling tangible personal property and rendering select services
in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base
of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales
and service tax shall also apply to the special district excise
tax and sales of gasoline and special fuel shall not be subject
to special district excise tax but shall remain subject to the tax
levied by said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an order
entered of record by the county commission and equal to the
general rate of tax on each dollar of gross proceeds from sales of tangible personal property and services subject to the tax
levied by section three, article fifteen, chapter eleven of this
code. The tax on fractional parts of a dollar shall be levied and
collected in conformity with the provision of said section.
(d) Collection by tax commissioner. -- The order of the
county commission imposing a special district excise tax shall
provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen,
chapter eleven of this code is administered, assessed, collected
and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special
district excise tax shall provide that the tax commissioner
deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the county
commission's subaccount therein for the economic opportunity
development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this
article except as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the county
commission's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of
this state, on or before the twentieth day of each calendar month
next following the effective date of a special district excise
tax, a sum equal to one twelfth of the base tax revenue amount
last certified by the council development office pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins sixty
days after the date of adoption of an order entered of record
imposing the tax or the first day of any later calendar month
expressly designated in the order.
(g) Copies of order. -- Upon entry of an order levying a
special district excise tax, a certified copy of the order shall
be mailed to the state auditor, as ex officio the chief inspector
and supervisor of public offices, the state treasurer and the tax
commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity
development district may not be amended to include additional
contiguous property until after the amendment is approved by the
council executive director of the development office in the same
manner as an application to approve the establishment of the
district is acted upon under section seven of this article and the
amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included
in the district unless it is situated within the boundaries of the
county and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its order shall designate a time and place for a public hearing upon
the proposal to include additional property. The notice shall
meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
county.
(d) Application to council West Virginia development office.
-- Following the hearing, the county commission may, by
resolution, apply to the council for community and economic
development office to approve inclusion of the additional property
in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and
economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the county commission
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council executive director of the development office approves amending the
boundaries of the district, the Legislature must amend section
nine of this article to allow levy of the special district excise
tax on business located in geographic area to be included in the
district. After the Legislature amends said section, the county
commission may then amend its order: Provided, That the order may
not be effective any earlier than the first day of the calendar
month that begins sixty days after the effective date of the act
of the Legislature authorizing the levy on the special district
excise tax on businesses located in the geographic area to be
added to the boundaries of the district for which the tax is
levied or a later date as set forth in the order of the county
commission.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary
amendment shall on the effective date of the order, determined as
provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the county commission's order or a later date as set forth in
the order.
§7-22-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of
the council for community and economic development executive
director of the development office and of all the holders or obligees of any indebtedness or other instruments the proceeds of
which were applied to any development or redevelopment
expenditures or any indebtedness the payment of which is secured
by revenues payable into the fund provided under section eight of
this article or by any public property, a district may only be
abolished by the county commission when there is no outstanding
indebtedness, the proceeds of which were applied to any
development or redevelopment expenditures or the payment of which
is secured by revenues payable into the fund provided under
section eight of this article, or by any public property, and
following a public hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the
district and shall be published as a Class I-0 legal advertisement
in compliance with article three, chapter fifty-nine of this code
at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the county
commission. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter
five-b of this code; (2) "Development expenditures" means payments
for governmental functions, programs, activities, facility
construction, improvements and other goods and services which a
district board is authorized to perform or provide under section
five of this article;
(3) (2) "District" means an economic opportunity development
district created pursuant to this article;
(4) (3) "District board" means a district board created
pursuant to section ten of this article;
(5) (4) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article; and
(6) (5) "Municipality" is a word of art and shall mean, for
the purposes of this article, only Class I and Class II cities as classified in section three, article one of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic
opportunity development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty
days prior to the scheduled hearing. In addition to the time and
place of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that
may be imposed upon sales of tangible personal property and
taxable services from business locations situated within the
proposed district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the municipality shall afford the opportunity
to be heard to any owner of real property situated in the proposed
district and any residents of the municipality.
(d) Application to council West Virginia development office.
-- If the municipality, following the public hearing, determines
it advisable and in the public interest to establish an economic opportunity development district, it shall apply to the council
for community and economic development West Virginia development
office for approval of the economic opportunity development
district project pursuant to the procedures provided in section
seven of this article.
§8-38-7. Application to development office for community and
economic development for approval of an economic
opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed
with it by municipalities pursuant to section six of this article.
Each application must include:
(1) A true copy of the notice described in section six of
this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its
inception: Provided, That the amounts of the reserves shall not exceed the amounts that would be required by ordinary commercial
capital market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment
of the district or from another place in this state to the
district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain
in the district, for the twelve full calendar months next preceding the date of the application: Provided, That for
purposes of this article, the aggregate amount is designated as
"the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after
the month in which the tax commissioner would first begin to
collect that tax; and (iii) the estimated amount of economic
opportunity district excise tax that will be collected during the
first thirty-six months after the month in which the tax
commissioner would first begin to collect that tax; and
(14) Any additional information the council development
office may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory
and regulatory requirements, the reasonableness of the project's
budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the area in which the project will be
located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities, in the area where the project will be located,
for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities
in the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity district is located;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local
economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the municipality and the project
developer or project team to carry out the project: Provided,
That no project may be approved by the council development office
unless the amount of all development expenditures proposed to be
made in the first twenty-four months following the creation of the
district results in capital investment of more than fifty million
dollars in the district and the municipality submits clear and
convincing information, to the satisfaction of the council
development office, that such investment will be made if the
council development office
approves the project and the
Legislature authorizes the municipality to levy an excise tax on
sales of goods and services made within the economic opportunity
development district as provided in this article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the
receipt of any additional information requested by the council
development office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a municipality's economic opportunity district
project application, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated
net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council for community and economic
development office has determined with respect to the district's
application based on any investigation it considers reasonable and
necessary, including
, but not limited to, any relevant information
the council for community and economic development office requests
from the tax commissioner and the tax commissioner provides to the
council development office: Provided, That in determining the net
annual district tax revenue amount, the council development office
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax revenue
amount, the council development office may use the estimate of the
gross annual district tax revenue amount provided by the
municipality pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a municipality's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any
investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council
development office requests from the tax commissioner and the tax
commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue
amount, the council development office may not use a base tax
revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the municipality
pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and
economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be
filed with the secretary of state.
§8-38-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account
and shall be invested in the manner described in section nine-c,
article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§8-38-10. Ordinance to create district as approved by
development office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council for community
and economic development executive director of the development
office and the levying of a special district excise tax for the
district has been authorized by the Legislature, all in accordance
with this article, the municipality may create the district by
ordinance entered of record as provided in article one of this
chapter: Provided, That the municipality may not amend, alter or
change in any manner the boundaries of the economic opportunity
development district authorized by the Legislature. In addition
to all other requirements, the ordinance shall contain the
following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all
things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of
this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the
terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the
district board and any person, agency, government entity, agency
or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of
its officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations
and contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or
construction or in any other lawful manner and hold title thereto
in its own name and to sell, lease or otherwise dispose of all or part of any real property which it may own, either by contract or
at public auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms
as the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to
any entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and
use, in the public interest and for the general welfare of the
people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of unemployment existing within the state.
(b) Additional contents of ordinance. -- The municipality's
ordinance shall also state the general intention of the
municipality to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of ordinance. -- Upon
enactment of an ordinance establishing an economic opportunity
development district excise tax, a certified copy of the ordinance
shall be mailed to the state auditor, as ex officio the chief
inspector and supervisor of public offices, the state treasurer
and the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been
authorized by the council for community and economic development
office to establish an economic opportunity development district,
in accordance with this article, shall provide, by ordinance, for
the appointment of a district board to oversee the operations of
the district: Provided, That the municipality may, in the
ordinance, in lieu of appointing a separate district board,
designate itself to act as the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members,
two of which shall be owners, or representatives of owners, of
real property situated in the economic opportunity development
district and the other five shall be residents of the municipality
within which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the ordinance creating the district, shall
submit an annual report to the municipality and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this
article prohibits any member of the district board from also
serving on the board of directors of a nonprofit corporation with
which the municipality may contract to provide specified services
within the district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services
on the board in the amount determined by the municipality:
Provided, That when a district board is not created for the
district but the work of the board is done by the municipality,
the members shall receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by
ordinance, impose that tax on the privilege of selling tangible
personal property and rendering select services in the district
in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base
of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales
and service tax shall also apply to the special district excise
tax and sales of gasoline and special fuel shall not be subject
to special district excise tax but shall remain subject to the tax
levied by said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an ordinance
enacted by the municipality and equal to the general rate of tax
on each dollar of gross proceeds from sales of tangible personal
property and services subject to the tax levied by section three,
article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of said section.
(d) Collection by tax commissioner. -- The ordinance of the
municipality imposing a special district excise tax shall provide
for the tax to be collected by the tax commissioner in the same manner as the tax levied by section three, article fifteen,
chapter eleven of this code is administered, assessed, collected
and enforced.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special
district excise tax shall provide that the tax commissioner
deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the
municipality's subaccount therein for the economic opportunity
development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this
article except as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the
municipality's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of
this state, on or before the twentieth day of each calendar month
next following the effective date of a special district excise
tax, a sum equal to one twelfth of the base tax revenue amount
last certified by the council development office pursuant to
section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance
imposing the tax or at any later date expressly designated in the
ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance
levying a special district excise tax, a certified copy of the
ordinance shall be mailed to the state auditor, as ex officio the
chief inspector and supervisor of public offices, the state
treasurer and the tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The ordinance creating an economic
opportunity development district may not be amended to include
additional contiguous property until after the amendment is
approved by the council for community and economic development
executive director of the development office in the same manner
as an application to approve the establishment of the district is
acted upon under section seven of this article.
(b) Limitations. -- Additional property may not be included
in the district unless it is situated within the boundaries of the
municipality and is contiguous to the then current boundaries of
the district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its
ordinance shall designate a time and place for a public hearing
upon the proposal to include additional property. The notice
shall meet the requirements set forth in section six of this
article.
(2) At the time and place set forth in the notice, the
municipality shall afford the opportunity to be heard to any
owners of real property either currently included in or proposed to be added to the existing district and to any other residents
of the municipality.
(d) Application to council West Virginia development office.
-- Following the hearing, the municipality may, by resolution,
apply to the council for community and economic development office
to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and
economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the municipality
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council
executive director of the development office for community and
economic development approves amending the boundaries of the
district, the Legislature must amend section nine of this article
to allow levy of the special district excise tax on business
located in geographic area to be included in the district. After
the Legislature amends said section, the municipality may then
amend its ordinance: Provided, That the ordinance may not be effective any earlier than the first day of the calendar month
that begins sixty days after the effective date of the amended
ordinance imposing the levy of the special district excise tax on
businesses located in the geographic area to be added to the
boundaries of the district for which the tax is levied or the
first day of a later calendar month as set forth in the ordinance
of the municipality.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary
amendment shall on the effective date of the ordinance, determined
as provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the municipality's ordinance or a later date as set forth in
the ordinance.
§8-38-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of
the council for community and economic development executive
director of the development office and of all the holders or
obligees of any indebtedness or other instruments the proceeds of
which were applied to any development or redevelopment
expenditures or any indebtedness, the payment of which is secured
by revenues payable into the fund provided under section eight of
this article or by any public property, a district may only be
abolished by the municipality when there is no outstanding indebtedness the proceeds of which were applied to any development
or redevelopment expenditures or the payment of which is secured
by revenues payable into the fund provided under section eight of
this article, or by any public property, and following a public
hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the
district and shall be published as a Class I-0 legal advertisement
in compliance with article three, chapter fifty-nine of this code
at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the
municipality. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being
abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment,
term of private members; chairman; quorum.
(a) The jobs investment trust board is continued. The board
is a public body corporate and established to improve and
otherwise promote economic development in this state.
(b) The board consists of thirteen members, five of whom
serve by virtue of their respective positions. These five are the
governor or designee; president of West Virginia university or his
or her designee; the president of Marshall university or his or
her designee; the chancellor of the higher education policy
commission or his or her designee; and the executive director of
the West Virginia housing development fund. and the executive
director of the West Virginia development office One member shall
be is appointed by the governor from a list of two names submitted
by the board of directors of the housing development fund. One
member shall be is appointed by the governor from a list of two
names submitted by the commissioner of the division of tourism.
The other six members shall be are appointed from the general
public by the governor. Of the members of the general public
members appointed by the governor, one shall be is an attorney
with experience in finance and investment matters; one shall be
is a certified public accountant; one shall be is a representative
of labor; one shall be is experienced or involved in innovative
business development; and two shall be are present or past executive officers of companies listed on a major stock exchange
or large privately held companies. Provided, That All
appointments made pursuant to the provisions of this article shall
be are by and with the advice and consent of the Senate.
(c) A vacancy on the board shall be is filled by appointment
by the governor for the unexpired term in the same manner as the
original appointment. Any person A member appointed to fill a
vacancy serves only for the remainder of the unexpired term.
(d) The governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and the governor may declare the office vacant and fill
fills the vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board
from among the members of the board The governor or designee
serves as the chair. The board annually elects one of its public
members as vice-chair, and appoints a secretary to keep records
of its proceedings who need not be a member of the board.
(f) Seven members of the board is a quorum. No Action may
not be taken by the board except upon the affirmative vote of at
least a majority of those members present or participating by any
other means as described in subsection (g) of this section, but
in no any event not fewer than six of the members serving on the
board.
(g) Members of the board may participate in a meeting of the
board by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can hear each other. and Participation in a board meeting
pursuant to this subsection constitutes presence in person at the
meeting.
(h) The members of the board, including the chairman, may
receive no compensation chair, are not compensated for their
services as members of the board, but are entitled to their
receive reasonable and necessary expenses actually incurred in
discharging their duties under this article in a manner consistent
with guidelines of the travel management office of the department
of administration.
(i) The board shall meet meets on a quarterly basis or more
often if necessary.
(j) The governor shall appoint a member for a four-year term.
Any member whose term has expired serves until his or her a
successor has been is duly appointed and qualified. Any member
is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of
Delegates, to be appointed by the Speaker of the House of
Delegates, and one member of the West Virginia Senate, to be
appointed by the President of the Senate, shall serve as advisory
members of the jobs investment trust board and, as advisory
members, shall be are ex officio, nonvoting members.
§12-7-5. Management and control of jobs investment trust vested
in board; officers; liability; authority of executive
director to act on behalf of board; relationship to
higher education institutions.
(a) It is the duty of the board to manage and control the
jobs investment trust. In order to carry out the day-to-day
management and control of the trust and effectuate the purposes
of this article, the board shall appoint an executive director who
is or has been a senior executive of a major financial
institution, brokerage firm, investment firm or similar
institution, with extensive experience in capital market
development. The board shall fix the executive director's duties.
The board shall fix the compensation of the executive director and
the compensation shall, at least in part, be incentive based. The
executive director serves at the will and pleasure of the board
With the advice and consent of the Senate, the governor appoints
an executive director of the jobs investment trust who is or has
been a senior executive of a major financial institution,
brokerage firm, investment firm or similar institution, with
extensive experience in capital market development.
The director
serves at the governor's will and pleasure and is responsible for
managing and administering the daily functions of the jobs
investment trust and for performing other functions necessary to
the effective operation of the trust. The compensation of the
director is annually fixed by the board.
If the governor removes
the executive director prior to the expiration of the term, the
authority, without the vote of the chair, fills the vacancy for
the remainder of the unexpired term in the same manner as the
original
appointment, but may not reappoint the individual removed
by the governor.
(b) The board shall elect a secretary annually elects a
secretary to keep a record of the proceedings of the board, who
need not be a member of the board. to keep a record of the
proceedings of the board
(c) The members and officers of the board are not liable
personally, either jointly or severally, for any debt or
obligation created by the board.
(d) The acts of the board are solely the acts of its
corporation and are not those of an agent of the state. No Any
debt or obligation of the board is not a debt or obligation of the
state.
(e) Upon the affirmative vote of at least a majority of those
members in attendance or participating by such other means as
described in subsection (g), section four of this article in a
meeting of the board, but in no any event not fewer than six of
the members serving on the board, the board may approve any action
to be taken and authorize the executive director for and on behalf
of the board to execute and deliver all instruments, agreements
or other documents that are required or are reasonably necessary
to effectuate the decisions or acts of the board.
(f) The West Virginia housing development fund shall provide
office space and staff support services for the director and the
board shall act as fiscal agent for the board and, as such, shall
provide accounting services for the board, invest all funds as
directed by the board, service all investment activities of the
board and shall make the disbursements of all funds as directed by the board, for which the West Virginia housing development fund
shall be reasonably compensated as determined by the board.
(g) The board and the executive director shall involve
students and faculty members of state institutions of higher
education in the board's activities in order to enhance the
opportunities at the institutions for learning and for
participation in the board's investment activities and in the
economic development of the state, whether in research, financial
analysis, management participation or in such other ways as the
board and the executive director may, in their discretion, find
appropriate.
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT
BOND ACT.
§13-2C-21. Ceiling on issuance of private activity bonds;
establishing procedure for allocation and
disbursements; reservation of funds; limitations;
unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of
the United States Internal Revenue Code of 1986, other than those
described in Section 146(g) of the Internal Revenue Code) issued
pursuant to this article, including bonds issued by the West
Virginia public energy authority pursuant to subsection (11),
section five, article one, chapter five-d of this code or under
article eighteen, chapter thirty-one of this code, during any
calendar year may not exceed the ceiling established by Section 146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i)
That, in an attempt to promote economic revitalization of
distressed urban and rural areas, certain special tax incentives
will be provided for empowerment zones and enterprise communities
to be designated from qualifying areas nominated by state and
local governments, all as set forth by Section 1391, et seq., of
the United States Internal Revenue Code; (ii) that qualified
businesses operating in enterprise communities and empowerment
zones will be eligible to finance property and provide other forms
of financial assistance as provided for in Section 1394 of the
United States Internal Revenue Code; and (iii) that it is in the
best interest of this state and its citizens to facilitate the
acquisition, construction and equipping of projects within
designated empowerment zones and enterprise communities by
providing an orderly mechanism for the commitment of the annual
ceiling for private activity bonds for these projects. It is
hereby further determined and declared as a matter of legislative
finding: (i) That the production of bituminous coal in this state
has resulted in coal waste which is stored in areas generally
referred to as gob piles; (ii) that gob piles are unsightly and
have the potential to pollute the environment in this state; (iii)
that the utilization of the materials in gob piles to produce
alternative forms of energy needs to be encouraged; (iv) that
Section 142(a)(6) of the United States Internal Revenue Code of
1986 permits the financing of solid waste disposal facilities through the issuance of private activity bonds; and (v) that it
is in the best interest of this state and its citizens to
facilitate the construction of facilities for the generation of
power through the utilization of coal waste by providing an
orderly mechanism for the commitment of the annual ceiling for
private activity bonds for these projects.
(b) On or before the first day of each calendar year, the
executive director of the development office shall determine the
state ceiling for the year based on the criteria of the United
States Internal Revenue Code. The annual ceiling shall be
allocated among the several issuers of bonds under this article
or under article eighteen, chapter thirty-one of this code as
follows:
(1) For the calendar year two thousand one, fifty million
dollars and for each subsequent calendar year, forty percent of
the state ceiling for that year shall be allocated to the West
Virginia housing development fund for the purpose of issuing
qualified mortgage bonds, qualified mortgage certificates or bonds
for qualified residential rental projects;
(2) The amount remaining after the allocation to the West
Virginia housing development fund described in subdivision (1) of
this subsection shall be retained by the West Virginia development
office and shall be referred to in this section as the "state
allocation";
(3) Thirty-five percent of the state allocation shall be set
aside by the development office to be made available for lessees, purchasers or owners of proposed projects, hereafter in this
section referred to as "nonexempt projects", which do not qualify
as exempt facilities as defined by United States Internal Revenue
Code. All reservations of private activity bonds for nonexempt
projects shall be approved and awarded by the committee based upon
an evaluation of general economic benefit and any rule that the
council for community and economic development office promulgates
pursuant to section three two, article two, chapter five-b of this
code: Provided, That all requests or reservations of funds from
projects described in this subsection are submitted to the
development office on or before the first day of November of each
calendar year: Provided, however, That on the fifteenth day of
November of each calendar year, the uncommitted portion of this
part of the state allocation shall revert to and become part of
the state allocation portion described in subsection (g) of this
section; and
(4) Ten percent of the state allocation shall be made
available for lessees, purchasers or owners of proposed commercial
or industrial projects which qualify as exempt facilities under
Section 1394 of the United States Internal Revenue Code. All
reservations of private activity bonds for the projects shall be
approved and awarded by the committee based upon an evaluation of
general economic benefit and any rule that the council for
community and economic development office promulgates pursuant to
section three two, article two, chapter five-b of this code:
Provided, That all requests for reservations of funds from projects described in this subsection shall be submitted to the
development office on or before the first day of November of each
calendar year: Provided, however, That on the fifteenth day of
November of each calendar year the uncommitted portion of this
part of the state allocation shall revert to and become part of
the state allocation portion described in subsection (g) of this
section.
(c) The remaining fifty-five percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities as defined by Section 142(a) of the United States
Internal Revenue Code. All reservations of private activity bonds
for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and
any rule that the council for community and economic development
office promulgates pursuant to section three two, article two,
chapter five-b of this code: Provided, That no reservation may
be in an amount in excess of fifty percent of this portion of the
state allocation: Provided, however, That all requests for
reservations of funds from projects described in this subsection
shall be submitted to the development office on or before the
first day of November of each calendar year: Provided further,
That on the fifteenth day of November of each calendar year the
uncommitted portion of this part of the state allocation shall
revert to and become part of the state allocation portion
described in subsection (g) of this section.
(d) No reservation may be made for any project until the
governmental body seeking the reservation submits a notice of
reservation of funds as provided in subsection (e) of this
section. The governmental body shall first adopt an inducement
resolution approving the prospective issuance of bonds and setting
forth the maximum amount of bonds to be issued. Each governmental
body seeking a reservation of funds following the adoption of the
inducement resolution shall submit a notice of inducement signed
by its clerk, secretary or recorder or other appropriate official
to the development office. The notice shall include information
required by the development office pursuant to any rule of the
council for community and economic development office.
Notwithstanding the foregoing, when a governmental body proposes
to issue bonds for the purpose of (i) Constructing, acquiring or
equipping a project described in subdivision (3) or (4),
subsection (b) of this section; or (ii) constructing an energy
producing project which relies, in whole or in part, upon coal
waste as fuel, to the extent the project qualifies as a solid
waste facility under Section 142(a)(6) of the United States
Internal Revenue Code of 1986, the project may be awarded a
reservation of funds from the state allocation available for three
years subsequent to the year in which the notice of reservation
of funds is submitted, at the discretion of the executive director
of the development office: Provided, That no discretionary
reservation may be made for any single project described in this
subsection in an amount in excess of thirty-five percent of the state allocation available for the year subsequent to the year in
which the request is made.
(e) Currently with or following the submission of its notice
of inducement, the governmental body at any time considered
expedient by it may submit its notice of reservation of funds
which shall include the following information:
(1) The date of the notice of reservation of funds;
(2) The identity of the governmental body issuing the bonds;
(3) The date of inducement and the prospective date of
issuance;
(4) The name of the entity for which the bonds are to be
issued;
(5) The amount of the bond issue or, if the amount of the
bond issue for which a reservation of funds has been made has been
increased, the amount of the increase;
(6) The type of issue; and
(7) A description of the project for which the bonds are to
be issued.
(f) The development office shall accept the notice of
reservation of funds no earlier than the first calendar workday
of the year for which a reservation of funds is sought: Provided,
That a notice of reservation of funds with respect to a project
described in subdivision (4), subsection (b) of this section or
an energy producing project that is eligible for a reservation of
funds for a year subsequent to the year in which the notice of
reservation of funds is submitted may contain an application for funds from a subsequent year's state allocation. Upon receipt of
the notice of reservation of funds, the development office shall
immediately note upon the face of the notice the date and time of
reception.
(g) If the bond issue for which a reservation has been made
has not been finally closed within one hundred twenty days of the
date of the reservation to be made by the committee, or the
thirty-first of December following the date of reservation if
sooner and a statement of bond closure which has been executed by
the clerk, secretary, recorder or other appropriate official of
the governmental body reserving the bond issue has not been
received by the development office within that time, then the
reservation shall expire and be considered to have been forfeited
and the funds reserved shall be released and revert to the portion
of the state allocation from which the funds were originally
reserved and shall then be made available for other qualified
issues in accordance with this section and the Internal Revenue
Code: Provided, That as to any reservation for a nonexempt
project or any reservation for a project described in subdivision
(4), subsection (b) of this section that is forfeited on or after
the first day of November in any calendar year, the reservation
shall revert to the state allocation for allocation by the
industrial revenue bond allocation review committee: Provided,
however, That as to any notice of reservation of funds received
by the development office during the month of December in any
calendar year with respect to any project qualifying as an elective carry forward pursuant to Section 146(f)(5) of the
Internal Revenue Code, the notice of reservation of funds and the
reservation to which the notice relates may not expire or be
subject to forfeiture: Provided further, That any unused state
ceiling as of the thirty-first day of December in any year not
otherwise subject to a carry forward pursuant to Section 146(f)
of the Internal Revenue Code shall be allocated to the West
Virginia housing development fund which shall be considered to
have elected to carry forward the unused state ceiling for the
purpose of issuing qualified mortgage bonds, qualified mortgage
credit certificates or bonds for qualified residential rental
projects, each as defined in the Internal Revenue Code. All
requests for subsequent reservation of funds upon loss of a
reservation pursuant to this section shall be treated in the same
manner as a new notice of reservation of funds in accordance with
subsections (d) and (e) of this section.
(h) Once a reservation of funds has been made for a project
described in subdivision (4), subsection (b) of this section,
notwithstanding the language of subsection (g) of this section,
the reservation shall remain fully available with respect to the
project until the first day of October in the year from which the
reservation was made at which time, if the bond issue has not been
finally closed, the reservation shall expire and be considered
forfeited and the funds reserved are released as provided in said
subsection.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-4. Division of highways to administer funds for wastetire
remediation; rules authorized; duties of
commissioner.
(a) The division of highways shall administer all funds made
available to the division for remediation of waste tire piles and
for the proper disposal of waste tires removed from waste tire
piles. The commissioner of the division of highways may: (i)
Propose for legislative promulgation in accordance with article
three, chapter twenty-nine-a of this code emergency and
legislative rules necessary to implement the provisions of this
article; and (ii) administer all funds appropriated by the
Legislature to carry out the requirements of this article and any
other funds from whatever source, including, but not limited to,
federal, state or private grants.
(b) The commissioner also has the following powers: (1) To
apply and carry out the provisions of this article and the rules
promulgated under this article. (2) To investigate, from time to
time, the operation and effect of this article and of the rules
promulgated under this article and to report his or her findings
and recommendations to the Legislature and the governor.
(c) The provisions of articles two-a and four of this chapter
and the policy, rules, practices and procedures under those
articles shall be followed by the commissioner in carrying out the
purposes of this article.
(d) On or before the first day of June, two thousand one, the commissioner shall determine the location, approximate size and
potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list.
(e) The commissioner may contract with the department of health
and human resources or the division of corrections, or both, to
remediate or assist in remediation of waste tire piles throughout
the state. Use of available department of health and human
resources and the division of corrections work programs shall be
given priority status in the contract process so long as such
programs prove a cost-effective method of remediating waste tire
piles.
(f) Waste tire remediation shall be stopped and the
department of environmental protection notified upon the discovery
of any potentially hazardous material at a remediation site. The
department of environmental protection shall respond to the
notification in accordance with the provisions of article
eighteen, chapter twenty-two of this code.
(g) The commissioner may establish a tire disposal program
within the division to provide for a cost effective and efficient
method to accept passenger car and light truck waste tires at such
division of highways county headquarters as have sufficient space
for temporary storage of waste tires and personnel to accept and
handle waste tires. The commissioner may pay a fee for each tire
an individual West Virginia resident or West Virginia business
brings to the division. The commissioner may establish a limit
on the number of tires an individual or business may be paid for during any calendar month. The commissioner may in his or her
discretion authorize commercial businesses to participate in the
collection program: Provided, That no person or business who has
a waste tire pile subject to remediation under this article may
participate in this program.
(h) The commissioner may pledge not more than two and
one-half million dollars annually of the moneys appropriated,
deposited or accrued in the A. James Manchin fund created by
section six of this article, to the payment of debt service,
including the funding of reasonable reserves, on bonds issued by
the water development authority pursuant to section seventeen-a,
article fifteen-a, chapter thirty-one of this code to finance
infrastructure projects relating to waste tire processing
facilities located in this state: Provided, That a waste tire
processing facility shall be determined by the solid waste
management board, established pursuant to the provisions of
article three, chapter twenty-two-c of this code, to meet all
applicable federal and state environmental laws and rules and
regulations and to aid the state in efforts to promote and
encourage recycling and use of constituent component parts of
waste tires in an environmentally sound manner: Provided,
however, That the waste tire processing facility shall have a
capital cost of not less than three hundred million dollars, and
the council for community and economic West Virginia development
office shall determine that the waste tire processing facility is
a viable economic development project of benefit to the state's economy.
CHAPTER 18. EDUCATION.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-1. School building authority; powers.
(a) The school building authority shall consist consists of
ten persons, eleven members, including the governor or designee;
of whom one shall be the state superintendent of schools, ex
officio; three shall be members of the state board of education,
elected by the state board; and six shall be citizens of the
state, appointed by the governor, by and with the advice and
consent of the Senate, who are knowledgeable in matters relevant
to the issues addressed by the authority, one of whom shall be is
representative of the interests of the construction trades.
(b) The citizen appointments shall be made as soon as
possible after the effective date of this section, and no two
citizen appointees shall be residents within the same region. Two
of the initial appointments shall be for two-year terms, and two
shall be for four-year terms, with all successive appointments
being for four-year terms. Until such appointments take effect,
the state board as constituted under the provisions of section
one, article two of this chapter may act as the authority with
such power as was granted them under the prior enactment of this
section. Citizen members are appointed for five-year terms, which
are staggered in accordance with the initial appointments under
prior enactment of this section. State board of education members
are elected for five-year terms, and may not be elected to serve additional consecutive terms or portions thereof.
(c) The governor or designee serves as chair. The authority
shall annually elect one of its public members as vice chair, and
shall appoint a secretary, who need not be a member of the
authority and who shall keep records of its proceedings.
(d) The governor may appoint an executive director of the
authority, with the advice and consent of the Senate, who serves
at the governor's will and pleasure for a term of four years. The
director is responsible for managing and administering the daily
functions of the authority and for performing all other functions
necessary to the effective operation of the authority. If the
governor removes the executive director prior to the expiration
of the term, the authority, without the vote of the chairperson,
shall fill the vacancy for the remainder of the unexpired term in
the same manner as the original
appointment, but may not reappoint
the individual removed by the governor.
(e) The governor may remove any appointed member for
incompetency, neglect of duty, moral turpitude or malfeasance in
office. If the governor removes a member, the governor shall fill
the vacancy for the remainder of the unexpired term in the same
manner as the original appointment.
(f) The school building authority shall meet at least
quarterly, and the citizen members shall be reimbursed for
reasonable and necessary expenses actually incurred in the
performance of their official duties from funds appropriated or
otherwise made available for such purpose upon submission of an itemized statement. therefor. The state superintendent of
schools shall serve as president of the authority.
(g) The acts performed by the members of the state board of
education in their capacity as members of the school building
authority are solely the acts of the authority.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 3D. WORKFORCE DEVELOPMENT INITIATIVE.
§18B-3D-1. Legislative findings and intent.
(a) The Legislature finds that a recent statewide study of
the workforce training needs of employers throughout the state
provided a clear message from the business community:
(1) The needs of employers are rapidly changing and training
providers must be more responsive or the state economy will
suffer;
(2) Information specific to West Virginia, once again
emphasizes the critical link between education and economic
development that empowering youth and adults with the knowledge
and skills they need to succeed in the competitive work world also
results in a workforce which enables businesses and communities
to prosper;
(3) Although employers are generally satisfied with the
quality of the West Virginia workforce and the study provides
additional support that the measures adopted in the Jobs Through
Education Act will bring continued improvement, workforce needs
are not static, critical skill shortages currently exist, and the
establishment of a workforce development system that responds more quickly to the evolving skill requirements of employers is needed.
(b) The Legislature further finds that a study of community
and technical education in West Virginia performed by the national
center for higher education management systems called attention
to problems in providing needed workforce education and found that
there is a need to:
(1) Jump-start development of community and technical college
and postsecondary workforce development initiatives;
(2) Provide incentives for existing public postsecondary
providers to respond jointly to both short and long-term needs of
employers and other clients;
(3) Provide funding for explicit incentives for partnerships
between employers and public postsecondary institutions to develop
comprehensive community and technical college and workforce
development services; and
(4) Allocate funds competitively on the basis of proposals
submitted by providers.
(c) It is further the intent of the Legislature that the
granting of funds under this article will promote the development
of comprehensive community and technical colleges as set forth in
article three-c of this chapter.
(d) It is the intent of the Legislature through the grant of
funds under this article to provide limited seed money to address
some of the specific areas where improvement is needed, including:
(1) Improving employer awareness and access to services
available through the state's education institutions;
(2) Providing designated professionals and resources to
support workforce education through the state's education
institutions;
(3) Assisting with the modernization and procurement of
equipment needed for workforce training programs: Provided, That
any equipment purchased or upgraded with grant funds awarded under
the provisions of this article may not be sold, disposed of or
used for purposes other than those specified in the grant without
prior approval of the council development office;
(4) Increasing the capacity of the state's education
institutions to respond rapidly to employer needs for workforce
education, and training on an on-going basis through the
development of a client-focused, visible point of contact for
program development and delivery, service referral and needs
assessment, such as a workforce development center; and
(5) Maximizing the use of available resources for workforce
education and training through partnerships with public
vocational, technical and adult education centers and private
training providers.
(e) It is further the intent of the Legislature that
consideration and partnering opportunities be given to small
businesses on an equal basis with larger businesses for the
purposes of this article and that the seed money will assist
providers in becoming self-sustaining through partnerships with
business and industry which will include cost-sharing initiatives
and fees charged for the use of services.
(f) The Legislature intends that grants of funds made under
the provisions of this article will be competitive among
applicants who meet all of the criteria established in this
article and such other criteria as may be specified by the council
development office. Subject to the availability of funds, more
than one competition may be held during the same fiscal year and
the dollar range of awards granted in successive competitions
shall be prorated based on the number of months remaining in the
fiscal year. Subject to annual review and justification, it is
the intent of the Legislature to renew grant awards made under
this article each year for not more than five years following the
initial grant award.
§18B-3D-2. Workforce development initiative program created;
program administration.
(a) For the purposes of this article "Council Development
office" means the council for community and economic development
as defined in section two, West Virginia development office
provided in article two, chapter five-b of this code.
(b) There is hereby created under the council development
office a workforce development initiative program to administer
and oversee grants to community and technical colleges to achieve
the purposes of this article in accordance with legislative
intent. The primary responsibility of the council development
office as it relates to the workforce development initiative
program is to administer the state fund for community and
technical college and workforce development including setting criteria for grant applications, receiving applications for
grants, making determinations on distribution of funds, and
evaluating the performance of workforce development initiatives.
(c) The council executive director of the development office
shall review and approve the expenditure of all grant funds,
including development of application criteria, the review and
selection of applicants for funding, and the annual review and
justification of applicants for grant renewal.
(1) To aid in decision making, the council shall appoint
executive director of the development office appoints an advisory
committee consisting of the vice chancellor for community and
technical colleges chancellor of the West Virginia council for
community and technical college education; the secretary of
education and the arts or a designee; the assistant state
superintendent for technical and adult education; the chair of the
West Virginia council for community and technical college
education; and the chair of the West Virginia workforce investment
council. The advisory committee shall review all applications for
workforce development initiative grants and make a report
including recommendations for distributing grant funds to the
council executive director of the development office. The
advisory committee also shall make recommendations on methods to
share among the community and technical colleges any curricula
developed as a result of a workforce development initiative grant.
(2) When determining which grant proposals will be funded,
the council executive director of the development office shall give special consideration to proposals by community and technical
colleges that involve businesses with fewer than fifty employees.
(3) The council executive director of the development office
also shall weigh each proposal to avoid awarding grants which will
have the ultimate effect of providing unfair advantage to
employers new to the state who will be in direct competition with
established local businesses.
(d) The council executive director of the development office
may allocate a reasonable amount, not to exceed five percent up
to a maximum of fifty thousand dollars of the funds available for
grants on an annual basis, for general program administration.
(e) The head of the council executive director of the
development office shall report to the legislative oversight
commission on workforce investment for economic development on the
status of the workforce development initiative program annually
by the first day of December. two thousand four, and annually
thereafter by the first day of December
(f) Moneys appropriated or otherwise available for the
workforce development initiative program shall be allocated by
line item to an appropriate account. Any moneys remaining in the
fund at the close of a fiscal year shall be are carried forward
for use in the next fiscal year.
(g) Nothing in this article requires a specific level of
appropriation by the Legislature.
§18B-3D-3. Mission of the workforce development initiative
program.
(a) The statewide mission of the workforce development
initiative program is to develop a strategy to strengthen the
quality of the state's workforce by linking the existing
postsecondary education capacity to the needs of business,
industry and other employers. Available funding will be used to
provide explicit incentives for partnerships between employers and
community and technical colleges to develop comprehensive
workforce development services. Funds will be granted on the
basis of proposals developed according to criteria established by
the council development office.
(b) The mission of any community and technical college
accepting a workforce development initiative grant is to:
(1) Become client-focused and develop programs that meet
documented employer needs;
(2) Involve and collaborate with employers in the development
of programs;
(3) Develop customized training programs that provide for the
changing needs of employers and that are offered at flexible times
and locations to accommodate employer scheduling;
(4) Develop partnerships with other public and private
providers, including small business development centers and,
vocational, technical and adult education centers, and with
business and labor, to fulfill the workforce development needs of
the service area;
(5) Establish cooperative arrangements with the public school
system for the seamless progression of students through programs of study that begin at the secondary level and conclude at the
community and technical college level, particularly with respect
to career and technical education certificates, associate of
applied science and selected associate of science degree programs
for students seeking immediate employment, individual
entrepreneurship skills, occupational development, skill
enhancement and career mobility.
(6) Assist in the on-going assessment of the workforce
development needs of the service area; and
(7) Serve as a visible point of contact and referral for
services to meet the workforce development needs of the service
area.
§18B-3D-4. Grant application procedures.
(a) In order to participate in the workforce development
initiative grant program, a community and technical college must
meet the following conditions:
(1) Establish a consortia committee Participate in a
community and technical college consortia as required by section
seven four, article three-c of this chapter. The consortia
committee or a subcommittee thereof Consortia representatives
shall participate in the development of and approve applications
for funding grants under the provisions of this article, and shall
approve the workforce development initiative budget;
(2) Develop a plan to achieve measurable improvements in the
quality of the workforce within its service area over a five-year
period. The plan must be developed in partnership with employers, local vocational schools, and other workforce education providers;
(3) Establish a special revolving fund under the jurisdiction
of the consortia committee community and technical college
dedicated solely to workforce development initiatives for the
purposes provided in this article. Any fees or revenues generated
from workforce development initiatives funded by a competitive
grant shall be deposited into this fund.
(b) To be eligible to receive a workforce development
initiative grant, a community and technical college must provide
at least the following information in its application:
(1) Identification of the specific business or business
sector training needs that will be met if a workforce development
initiative grant is received;
(2) A commitment from the private sector to provide a match
of one dollar, cash and in-kind, for each dollar of state grant
money received except in cases where the community and technical
college can demonstrate in the grant application that it would be
a hardship for the business being served to provide such a match.
In those cases only, the match required may be reduced to one
private dollar, cash and in-kind, for every three dollars of state
grant money provided. In the case of awards for the modernization
of procurement of equipment, the council development office may
establish a separate match requirement of up to one dollar, cash
and in-kind, for each dollar of state grant money received;
(3) An agreement to share with other community and technical
colleges any curricula developed using funds from a workforce development initiative grant;
(4) A specific plan showing how the community and technical
college will collaborate with local postsecondary vocational
institutions to maximize the use of existing facilities, personnel
and equipment;
(5) An acknowledgment that acceptance of a grant under the
provisions of this article commits the community and technical
college and its consortia committee to such terms, conditions and
deliverables as is specified by the council development office in
the request for applications, including, but not limited to, the
measures by which the performance of the workforce development
initiative will be evaluated.
(c) Applications submitted by community and technical
colleges may be awarded funds for programs which meet the
requirements of this article that are operated on a collaborative
basis at facilities under the jurisdiction of the public schools
and utilized by both secondary and post-secondary students.
§18B-3D-5. Legislative rules.
The council executive director of the development office
shall propose a legislative rule pursuant to article three-a,
chapter twenty-nine-a of this code to implement the provisions of
this article and shall file the rule with the legislative
oversight commission on education accountability no later than the
first day of September, one thousand nine hundred ninety-nine two
thousand five.
Any rule in effect as of the effective date of the amendment and reenactment of this section in the year two thousand five will
remain in effect until amended, modified, repealed or replaced.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-4. Water development authority; water development board;
organization of authority and board; appointment of
board members; their term of office, compensation
and expenses; director of authority; compensation.
(a) The water development authority is continued. The
authority is a governmental instrumentality of the state and a
body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and
duties are essential governmental functions and for a public
purpose.
(b) The authority is controlled, managed and operated by the
a seven-member board known as the water development board. The
governor or designee, the director of the department of
environmental protection or designee, and the commissioner of the
bureau for public health and the state officer or employee who,
in the judgment of the governor, is most responsible for economic
or community development or designee are members ex officio of the
board. The governor shall designate annually the member who is
the state officer or employee most responsible for economic or
community development. The other four members of the board Four
members are appointed by the governor, by and with the advice and consent of the Senate, for six-year terms, which are staggered in
accordance with the initial appointments under prior enactment of
this section. of two, three, four and six years, respectively.
The successor of each such appointed member shall be appointed for
a term of six years in the same manner the original appointments
were made except that any person appointed to fill a vacancy
occurring prior to the expiration of the term for which his or her
predecessor was appointed shall be appointed only for the
remainder of such term. Each board member serves In the event of
a vacancy, appointments are filled in the same manner as the
original appointment for the remainder of the unexpired term. A
member continues to serve until the appointment and qualification
of his or her the successor. No More than two of the appointed
board members shall may not at any one time belong to the same
political party. Appointed board members may be reappointed to
serve additional terms.
(c) All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars in the manner provided in article two of said
chapter. The governor may remove any board member for cause as
provided in article six of said chapter.
(d) Annually
The governor or designee serves as chair. The
board shall annually elect one of its appointed members as chair
and another as vice chair and shall appoint a secretary-treasurer, who need not be a member of the board. Four members of the board
is a quorum and the affirmative vote of four members is necessary
for any action taken by vote of the board. No A vacancy in the
membership of the board impairs does not impair the rights of a
quorum by such vote to exercise all the rights and perform all the
duties of the board and the authority. The person appointed as
secretary-treasurer, including a board member if he or she is so
appointed, shall give bond in the sum of fifty thousand dollars
in the manner provided in article two, chapter six of this code.
(e) The governor or designee, the secretary of the department
of environmental protection and the commissioner of the bureau for
public health and the state officer or employee most responsible
for economic or community development shall do not receive any
compensation for serving as board members. Each of the four
appointed members of the board shall receive appointed member
receives an annual salary of twelve thousand dollars, payable in
monthly installments. Each of the seven board members shall be
is reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
the board in a manner consistent with guidelines of the travel
management office of the department of administration.
All
expenses incurred by the board are payable solely from funds of
the authority or from funds appropriated for that purpose by the
Legislature. and no Liability or obligation shall be is not
incurred by the authority beyond the extent to which moneys are
available from funds of the authority or from such appropriations.
(f) There shall also be is a director of the authority
appointed by the board governor, with the advice and consent of
the Senate, who serves at the governor's will and pleasure. The
director is responsible for managing and administering the daily
functions of the authority and for performing other functions
necessary to the effective operation of the authority.
If the
governor removes the executive director prior to the expiration
of the term, the authority, without the vote of the chairperson,
shall fill the vacancy for the remainder of the unexpired term in
the same manner as the original
appointment, but may not reappoint
the individual removed by the governor.
The executive director's
compensation is fixed annually by the board of directors.
The
compensation of the director shall be fixed is fixed annually by
the board.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State excess lottery revenue fund.
(a) There is continued a special revenue fund within the
state lottery fund in the state treasury which is designated and
known as the "state excess lottery revenue fund". The fund
consists of all appropriations to the fund and all interest earned
from investment of the fund and any gifts, grants or contributions
received by the fund. All revenues received under the provisions
of sections ten-b and ten-c, article twenty-two-a of this chapter
and under article twenty-two-b of this chapter, except the amounts
due the commission under section 29-22B-1408(a)(1) of this chapter, shall be deposited in the state treasury and placed into
the "state excess lottery revenue fund". The revenue shall be
disbursed in the manner provided in this section for the purposes
stated in this section and shall not be treated by the auditor and
the state treasurer as part of the general revenue of the state.
(b) For the fiscal year beginning the first day of July, two
thousand two, the commission shall deposit: (1) Sixty-five
million dollars into the subaccount of the state excess lottery
revenue fund hereby created in the state treasury to be known as
the "general purpose account" to be expended pursuant to
appropriation of the Legislature; (2) ten million dollars into the
education improvement fund for appropriation by the Legislature
to the "promise scholarship fund" created in section seven,
article seven, chapter eighteen-c of this code; (3) nineteen
million dollars into the economic development project fund created
in subsection (d) of this section for the issuance of revenue
bonds and to be spent in accordance with the provisions of said
subsection; (4) twenty million dollars into the school building
debt service fund created in section six, article nine-d, chapter
eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia infrastructure fund created
in section nine, article fifteen-a, chapter thirty-one of this
code to be spent in accordance with the provisions of said
article; (6) ten million dollars into the higher education
improvement fund for higher education; and (7) five million
dollars into the state park improvement fund for park improvements. For the fiscal year beginning the first day of
July, two thousand three, the commission shall deposit: (1)
Sixty-five million dollars into the general purpose account to be
expended pursuant to appropriation of the Legislature; (2)
seventeen million dollars into the education improvement fund for
appropriation by the Legislature to the "promise scholarship fund"
created in section seven, article seven, chapter eighteen-c of
this code; (3) nineteen million dollars into the economic
development project fund created in subsection (d) of this section
for the issuance of revenue bonds and to be spent in accordance
with the provisions of said subsection; (4) twenty million dollars
into the school building debt service fund created in section six,
article nine-d, chapter eighteen of this code for the issuance of
revenue bonds; (5) forty million dollars into the West Virginia
infrastructure fund created in section nine, article fifteen-a,
chapter thirty-one of this code to be spent in accordance with the
provisions of said article; (6) ten million dollars into the
higher education improvement fund for higher education; and (7)
five million dollars into the state park improvement fund for park
improvements.
(c) For the fiscal year beginning the first day of July, two
thousand four, and subsequent fiscal years, the commission shall
deposit: (1) Sixty-five million dollars into the general purpose
account to be expended pursuant to appropriation of the
Legislature; (2) twenty-seven million dollars into the education
improvement fund for appropriation by the Legislature to the "promise scholarship fund" created in section seven, article
seven, chapter eighteen-c of this code; (3) nineteen million
dollars into the economic development project fund created in
subsection (d) of this section for the issuance of revenue bonds
and to be spent in accordance with the provisions of said
subsection; (4) nineteen million dollars into the school building
debt service fund created in section six, article nine-d, chapter
eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia infrastructure fund created
in section nine, article fifteen-a, chapter thirty-one of this
code to be spent in accordance with the provisions of said
article; (6) ten million dollars into the higher education
improvement fund for higher education; and (7) five million
dollars into the state park improvement fund for park
improvements. No portion of the distributions made as provided
in this subsection and subsection (b) of this section, except
distributions made in connection with bonds issued under
subsection (d) of this section, may be used to pay debt service
on bonded indebtedness until after the Legislature expressly
authorizes issuance of the bonds and payment of debt service on
the bonds through statutory enactment or the adoption of a
concurrent resolution by both houses of the Legislature. Until
subsequent legislative enactment or adoption of a resolution that
expressly authorizes issuance of the bonds and payment of debt
service on the bonds with funds distributed under this subsection
and subsection (b) of this section, except distributions made in connection with bonds issued under subsection (d) of this section,
the distributions may be used only to fund capital improvements
that are not financed by bonds and only pursuant to appropriation
of the Legislature.
(d) The Legislature finds and declares that in order to
attract new business, commerce and industry to this state, to
retain existing business and industry providing the citizens of
this state with economic security and to advance the business
prosperity of this state and the economic welfare of the citizens
of this state, it is necessary to provide public financial support
for constructing, equipping, improving and maintaining economic
development projects, capital improvement projects and
infrastructure which promote economic development in this state.
(1) The West Virginia economic development authority created
and provided for in article fifteen, chapter thirty-one of this
code shall, by resolution, in accordance with the provisions of
this article and article fifteen, chapter thirty-one of this code,
and upon direction of the governor, issue revenue bonds of the
economic development authority in no more than two series to pay
for all or a portion of the cost of constructing, equipping,
improving or maintaining projects under this section or to refund
the bonds at the discretion of the authority. Any revenue bonds
issued on or after the first day of July, two thousand two, which
are secured by state excess lottery revenue proceeds shall mature
at a time or times not exceeding thirty years from their
respective dates. The principal of, and the interest and redemption premium, if any, on, the bonds shall be payable solely
from the special fund provided in this section for the payment.
(2) There is continued in the state treasury a special
revenue fund named the "economic development project fund" into
which shall be deposited on and after the first day of July, two
thousand two, the amounts to be deposited in said fund as
specified in subsections (b) and (c) of this section. The
economic development project fund shall consist of all such
moneys, all appropriations to the fund, all interest earned from
investment of the fund and any gifts, grants or contributions
received by the fund. 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 section, including any and all commercially
customary and reasonable costs and expenses which may be incurred
in connection with the issuance, refunding, redemption or
defeasance thereof. The West Virginia economic development
authority may further provide in the resolution and in the trust
agreement for priorities on the revenues paid into the economic
development project fund as may be necessary for the protection
of the prior rights of the holders of bonds issued at different
times under the provisions of this section. The bonds issued
pursuant to this subsection shall be separate from all other bonds
which may be or have been issued from time to time under the
provisions of this article.
(3) After the West Virginia economic development authority has issued bonds authorized by this section and after the
requirements of all funds have been satisfied, including any
coverage and reserve funds established in connection with the
bonds issued pursuant to this subsection, any balance remaining
in the economic development project fund may be used for the
redemption of any of the outstanding bonds issued under this
subsection 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 redeemable, and all bonds
redeemed or purchased shall be immediately canceled and shall not
again be issued.
(4) Bonds issued under this subsection shall state on their
face that the bonds do not constitute a debt of the state of West
Virginia; that payment of the bonds, interest and charges thereon
cannot become an obligation of the state of West Virginia; and
that the bondholders' remedies are limited in all respects to the
"special revenue fund" established in this subsection for the
liquidation of the bonds.
(5) The West Virginia economic development authority shall
expend the bond proceeds from the revenue bond issues authorized
and directed by this section for such projects as may be certified
under the provision of this subsection: Provided, That the bond
proceeds shall be expended in accordance with the requirements and
provisions of article five-a, chapter twenty-one of this code and
either article twenty-two or twenty-two-a, chapter five of this
code, as the case may be: Provided, however, That if such bond proceeds are expended pursuant to article twenty-two-a, chapter
five of this code and if the design-build board created under said
article determines that the execution of a design-build contract
in connection with a project is appropriate pursuant to the
criteria set forth in said article and that a competitive bidding
process was used in selecting the design builder and awarding such
contract, such determination shall be conclusive for all purposes
and shall be deemed to satisfy all the requirements of said
article.
(6) For the purpose of certifying the projects that will
receive funds from the bond proceeds, a committee is hereby
established and comprised of the governor, or his or her designee,
the secretary of the department of tax and revenue, the executive
director of the West Virginia development office and six persons
appointed by the governor: Provided, That at least one citizen
member must be from each of the state's three congressional
districts. The committee shall meet as often as necessary and
make certifications from bond proceeds in accordance with this
subsection. The committee shall meet within thirty days of the
effective date of this section.
(7) Applications for grants submitted on or before the first
day of July, two thousand two, shall be considered refiled with
the committee. Within ten days from the effective date of this
section as amended in the year two thousand three, the lead
applicant shall file with the committee any amendments to the
original application that may be necessary to properly reflect changes in facts and circumstances since the application was
originally filed with the committee.
(8) When determining whether or not to certify a project, the
committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of
funding;
(B) Whether funding for the amount requested in the grant
application is or reasonably should be available from commercial
sources;
(C) The ability of the project to create or retain jobs,
considering the number of jobs, the type of jobs, whether benefits
are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new
jobs or the compensation currently paid to persons whose jobs
would be retained;
(D) Whether the project will promote economic development in
the region and the type of economic development that will be
promoted;
(E) The type of capital investments to be made with bond
proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the
public.
(9) No grant may be awarded to an individual or other private
person or entity. Grants may be awarded only to an agency,
instrumentality or political subdivision of this state or to an
agency or instrumentality of a political subdivision of this state.
The project of an individual or private person or entity may be
certified to receive a low-interest loan paid from bond proceeds.
The terms and conditions of the loan, including, but not limited
to, the rate of interest to be paid and the period of the
repayment, shall be determined by the economic development
authority after considering all applicable facts and
circumstances.
(10) Prior to making each certification, the committee shall
conduct at least one public hearing, which may be held outside of
Kanawha County. Notice of the time, place, date and purpose of
the hearing shall be published in at least one newspaper in each
of the three congressional districts at least fourteen days prior
to the date of the public hearing.
(11) The committee may not certify a project unless the
committee finds that the project is in the public interest and the
grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public
purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports
and sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater
treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and facilities;
(F) Industrial parks, including construction of roads, sewer,
water, lighting and other facilities;
(G) Improvements at state parks, such as construction,
expansion or extensive renovation of lodges, cabins, conference
facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs
on public or private land necessary to retain existing businesses
or attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking
and hiking trails, bike trails, picnic facilities, restrooms, boat
docking and fishing piers, basketball and tennis courts, and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national
register of historic places;
(K) Retail facilities, including related service, parking and
transportation facilities, appropriate lighting, landscaping and
security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic
development, educational opportunities or tourism opportunities
thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection,
the committee shall certify to the economic development authority
a list of those certified projects that will receive funds from
the proceeds of the bonds. Once certified, the list may not thereafter be altered or amended other than by legislative
enactment.
(13) If any proceeds from sale of bonds remain after paying
costs and making grants and loans as provided in this subsection,
the surplus may be deposited in an account created in the state
treasury to be known as the "economic development project bridge
loan fund" to be administered by the council for community and
economic development economic development authority created in
section two, article two fifteen, chapter five-b thirty-one of
this code. Expenditures from the fund are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter five-a of
this code. Loan repayment amounts, including the portion
attributable to interest shall be paid into the fund created in
this subdivision.
(e) If the commission receives revenues in an amount that is
not sufficient to fully comply with the requirements of
subsections (b), (c) and (h) of this section, the commission shall
first make the distribution to the economic development project
fund; second, make the distribution or distributions to the other
funds from which debt service is to be paid; third, make the
distribution to the education improvement fund for appropriation
by the Legislature to the promise scholarship fund; and fourth,
make the distribution to the general purpose account: Provided, That, subject to the provisions of this subsection, to the extent
such revenues are not pledged in support of revenue bonds which
are or may be issued from time to time under this section, the
revenues shall be distributed on a pro rata basis.
(f) For the fiscal year beginning on the first day of July,
two thousand two, and each fiscal year thereafter, the commission
shall, after meeting the requirements of subsections (b), (c) and
(h) of this section and after transferring to the state lottery
fund created under section eighteen of this article an amount
equal to any transfer from the state lottery fund to the excess
lottery fund pursuant to subsection (f), section eighteen of this
article, deposit fifty percent of the amount by which annual gross
revenue deposited in the state excess lottery revenue fund exceeds
two hundred twenty-five million dollars in a fiscal year in a
separate account in the state lottery fund to be available for
appropriation by the Legislature.
(g) When bonds are issued for projects under subsection (d)
of this section or for the school building authority,
infrastructure, higher education or park improvement purposes
described in this section that are secured by profits from
lotteries deposited in the state excess lottery revenue fund, the
lottery director shall allocate first to the economic development
project fund an amount equal to one tenth of the projected annual
principal, interest and coverage requirements on any and all
revenue bonds issued, or to be issued, on or after the first day
of July, two thousand two, as certified to the lottery director; and second, to the fund or funds from which debt service is paid
on bonds issued under this section for the school building
authority, infrastructure, higher education and park improvements
an amount equal to one tenth of the projected annual principal,
interest and coverage requirements on any and all revenue bonds
issued, or to be issued, on or after the first day of April, two
thousand two, as certified to the lottery director. In the event
there are insufficient funds available in any month to transfer
the amounts required pursuant to this subsection, the deficiency
shall be added to the amount transferred in the next succeeding
month in which revenues are available to transfer the deficiency.
(h) In fiscal year two thousand four and thereafter, prior to
the distributions provided in subsection (c) of this section, the
lottery commission shall deposit into the general revenue fund
amounts necessary to provide reimbursement for the refundable
credit allowable under section twenty-one, article twenty-one,
chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities
in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for
professional educators and public employees;
(B) Providing adequate funding for the public employees
insurance agency; and
(C) Providing funding to help address the shortage of
qualified teachers and substitutes in areas of need, both in
number of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by
any court to require any appropriation or any specific
appropriation or level of funding for the purposes set forth in
this subsection.
(j) The Legislature further directs the governor to focus
resources on the creation of a prescription drug program for
senior citizens by pursuing a medicaid waiver to offer
prescription drug services to senior citizens; by investigating
the establishment of purchasing agreements with other entities to
reduce costs; by providing discount prices or rebate programs for
seniors; by coordinating programs offered by pharmaceutical
manufacturers that provide reduced cost or free drugs; by
coordinating a collaborative effort among all state agencies to
ensure the most efficient and cost effective program possible for
the senior citizens of this state; and by working closely with the
state's congressional delegation to ensure that a national program
is implemented. The Legislature further directs that the governor
report his progress back to the joint committee on government and
finance on an annual basis beginning in November of the year two
thousand one until a comprehensive program has been fully
implemented.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia infrastructure and jobs development
council continued; members of council; staff of council.
(a) The West Virginia infrastructure and jobs development
council is hereby continued. The council is a governmental
instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its
purpose and duties shall be considered and held to be, and are
hereby determined to be, essential governmental functions and for
a public purpose.
(b) The council shall consist of eleven members, including
the governor or his or her designee, the executive director of the
housing development fund or his or her designee, the director of
the department of environmental protection or his or her designee,
the director of the economic development authority or his or her
designee, the director of the water development authority or his
or her designee, the executive director of the state development
office or his or her designee, the director of the division of
health or his or her designee, the chairman of the public service
commission or his or her designee, and four members representing
the general public: Provided, That there shall be at least one
member representing the general public from each congressional
district: Provided, however, That after the expiration of the
term of office of the members first appointed as representatives
of the general public, no more than one member representing the
general public may be a resident of the same county. The governor
shall appoint the public members of the council who shall serve
three-year staggered terms. The commissioner of the division of highways, the executive director of the state rail authority, two
members of the West Virginia Senate, two members of the West
Virginia House of Delegates, one representative of the board of
directors of the state college system and one representative of
the board of trustees of the university of West Virginia shall the
chancellor of the higher education policy commission and the
chancellor of the West Virginia Council for Community and
Technical College Education serve as advisory members of the
council. The governor shall appoint the legislative members of
the council: Provided further, That no more than three of the
legislative members may be of the same political party. The
governor shall appoint the representatives of the governing boards
from a list of three names submitted by each governing board. The
advisory members shall be ex officio, nonvoting members of the
council.
(c) The council shall annually elect one of its members
governor or his or her designee shall serve as chairman, and the
council shall annually appoint a vice chairperson, and shall
appoint a secretary, who need not be a member of the council and
who shall keep records of its proceedings. Six members of the
council shall constitute a quorum and the affirmative vote of at
least the majority of those members present shall be necessary for
any action taken by vote of the council. No A vacancy in the
membership of the council impairs does not impair the rights of
a quorum by such vote to exercise all the rights and perform all
the duties of the council.
(d) No A member of the council who serves by virtue of his or
her office shall receive any does not receive compensation or
reimbursement of expenses for serving as a member. The general
public members of the council who represent the general public
shall receive reimbursement are reimbursed for actual expenses
incurred in the service of the council in a manner consistent with
guidelines of the travel management office of the department of
administration.
(e) The council shall meet meets at least monthly to review
projects and infrastructure projects requesting funding assistance
and otherwise to conduct its business, and shall may meet more
frequently if necessary. Notwithstanding any other provision of
this article to the contrary, the economic development authority
shall not be is not subject to council review with regard to any
action taken pursuant to the authority established in article
fifteen, chapter thirty-one of this code. nor shall The
governor's civil contingent fund be is not subject to council
review with regard to projects or infrastructure projects funded
through the governor's civil contingent fund.
(f) The water development authority shall provide office
space for the council, and each governmental agency represented
on the council shall provide staff support for the council in the
manner determined appropriate by the council. from time to time
(g) The council shall invite to all its meetings each meeting
one or more representatives of the United States department of
agriculture, rural economic community development, the United States economic development agency and the United States army
corps of engineers or any successors thereto. The council shall
also invite such other appropriate parties as may be is necessary
to effectuate the purposes of this article.
§31-15A-11. Reservation of funds for projects and infrastructure
projects.
Eighty percent of the funds deposited in the West Virginia
infrastructure fund shall be dedicated for the purpose of
providing funding for the cost of projects as defined in
subsection (n), section two of this article. Twenty percent of
the funds deposited in the West Virginia infrastructure fund shall
be dedicated for the purpose of providing funding for costs of
infrastructure projects as defined in subsection (l), section two
of this article. Project sponsors of infrastructure projects
shall follow the application process as established by this
article: Provided, That notwithstanding any provision of this
article to the contrary, all applications for any infrastructure
project shall be submitted to the council for community and
economic development, or its successor, executive director of the
West Virginia development office for review, recommendation and
approval regarding infrastructure project funding.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-4. Composition; board of directors; appointment, term,
etc., of private members; chairman and vice
chairman; quorum.
(a) There is continued as a governmental instrumentality of the state of West Virginia, a public body corporate to be known
as the West Virginia housing development fund.
(b) The housing development fund is created and established
to serve a public corporate purpose and to act for the public
benefit and as a governmental instrumentality of the state of West
Virginia, to act on behalf of the state and its people in
improving and otherwise promoting their health, welfare and
prosperity.
(c) The housing development fund shall be governed by a board
of directors, consisting of eleven members, four of whom shall be
the governor, the attorney general, the commissioner of
agriculture, and the state treasurer, or their designated
representatives as public directors, and seven of whom shall be
chosen from the general public residing in the state, as private
directors. No more than four of the private directors shall be
from the same political party.
(d) Upon organization of the housing development fund, the
governor shall appoint, by and with the advice and consent of the
Senate, the seven private directors to take office and to exercise
all powers thereof immediately, with two each appointed for terms
of two years and three years, and with three each appointed for
terms of four years, respectively, as the governor shall
designate; at the expiration of said terms and for all succeeding
terms, the governor shall appoint a successor to the office of
private director for a term of four years in each case.
(e) In cases of any A vacancy in the office of a private director such vacancy shall be is filled by appointment by the
governor for the remainder of the unexpired term.
(f) The governor may remove any private director whom he may
appoint in case for reason of incompetency, neglect of duty, gross
immorality, or malfeasance in office, and he may declare his
office vacant and may appoint a person for such appoint a director
to fill the vacancy as provided in other cases of vacancy.
(g) The chairman and The governor or designee serves as
chair. The board of directors shall annually elect one of its
public members as vice chair vice chairman, of the board of
directors shall be designated by the governor from among the
directors and appoint a secretary to keep records of its
proceedings, who need not be a member of the board.
(h) Six members of the board of directors shall constitute
constitutes a quorum. No A vacancy in the membership of the board
shall does not impair the right of a quorum to exercise all the
rights and perform all the duties of the board of directors.
(i) No action shall Action may not be taken by the board of
directors except upon the affirmative vote of at least six of the
directors.
(j) The directors, including the chairman, vice chairman and
the chair, vice chair and treasurer, of the board of directors and
the secretary of the board of directors shall receive no
compensation are not compensated for their services but shall be
entitled to their receive reasonable and necessary expenses
actually incurred in discharging their duties under this article in a manner consistent with guidelines of the travel management
office of the department of administration.
§31-18-5. Management and control of housing development fund
vested in board; officers; liability.
(a) The management and control of the housing development
fund shall be vested solely in the board of directors in
accordance with the provisions of this article.
(b) The chairman shall be the chief executive officer of the
housing development fund, and, in his or her absence, the vice
chairman shall act as chief executive officer.
(c) The board of directors may appoint a chief administrative
officer and may fix his title, duties and compensation. There is
an executive director of the housing development fund appointed
by the governor, with the advice and consent of the Senate, who
serves at the governor's will and pleasure for a term of four
years. The director is responsible for managing and administering
the daily functions of the housing development fund and for
performing other functions necessary to the effective operation
of the housing development fund.
If the governor removes the
executive director prior to the expiration of the term, the
authority, without the vote of the chairperson, shall fill the
vacancy for the remainder of the unexpired term in the same manner
as the original
appointment, but may not reappoint the individual
removed by the governor.
The executive director's compensation
is fixed annually by the board of directors.
(d) The board of directors of the housing development fund shall annually elect from its membership a treasurer, and shall
annually elect a secretary, who need not be a member of the board,
to keep a record of the proceedings of the housing development
fund.
(e) The treasurer of the housing development fund shall be
custodian of all funds of the housing development fund, and shall
be bonded in such amount as the other members of the board of
directors may designate.
(f) The directors and officers of the West Virginia housing
development fund shall not be liable personally, either jointly
or severally, for any debt or obligation created by the West
Virginia housing development fund.
;
And,
On pages one through five, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 1002--A Bill
to amend
the code of West
Virginia, 1931, as amended,
by adding thereto a new section,
designated §5-1-28; to amend said code by adding thereto a new
article, designated
§5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5,
§
5B-1-6 and §
5B-1-7;
to amend and reenact §
5B-2-2 and §
5B-2-3 of
said code; to amend said code by adding thereto a new section,
designated §
5B-2-14;
to amend and reenact §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6 and
§5B-2E-9
of said code;
to amend and reenact
§5D-1-4 and §5D-1-5
of said code
; to amend said code by adding
thereto a new section, designated §
5D-1-24
; to amend and reenact
§5F-1-2 of said code; to amend and reenact §5F-2-1 and §5F-2-2
of said code
; to amend and reenact §
7-22-3, §
7-22-6, §
7-22-7,
§
7-22-8, §
7-22-10, §
7-22-11, §
7-22-12, §
7-22-14 and §
7-22-15 of
said code; to amend and reenact §
8-38-3, §
8-38-6, §
8-38-7,
§
8-38-8, §
8-38-10, §
8-38-11, §
8-38-12, §
8-38-14 and §
8-38-15 of
said code;
to amend and reenact §
12-7-4 and §
12-7-5
of said code;
to amend and reenact §13-2C-21
of said code
; to amend and reenact
§
17-24-4 of said code; to amend and reenact §
18-9D-1
of said code;
to amend and reenact §
18B-3D-1, §
18B-3D-2, §18B-3D-3,
§
18B-3D-4
and §
18B-3D-5
of said code;
to amend and reenact §
22C-1-4 of said
code; to amend and reenact §29-22-18a of said code;
to amend and
reenact §31-15A-3
and §
31-15A-11 of said code; to amend and
reenact §
31-18-4 and §
31-18-5
of said code,
all relating to the
reorganization of the executive branch of state government;
establishing prerequisites for bond issuance and refunding;
creating a new department of commerce in the executive branch of
state government; creating the office of secretary as the chief
executive officer of the department of commerce; providing for the
transfer to and incorporation into the department of commerce of
numerous state divisions, agencies and boards and allied,
advisory, affiliated and related entities and funds; describing
the powers, duties, and authority of the secretary,
administrators, division heads and employees
of the department of
commerce; providing for annual reports by the secretary of the
department of commerce to the governor; providing for the
delegation of powers and duties for the secretary of the
department of commerce;
extending authority of executive agencies to transfer funds;
providing for interdepartmental communication
of certain confidential information in certain cases; providing
for an appeal in instances relating to the interference of
government by the department of commerce;
establishing the
economic development authority as an independent agency within the
executive branch;
providing for the appointment and duties of the
executive director of the development office;
transferring
authority from the
council for community and economic development
to the development office in certain cases;
transferring
rulemaking authority from the
council for community and economic
development to the development office
or its executive director;
transferring the certified development community program to the
economic development office; revising the powers and duties of the
development office;
transferring authority to approve tourism
development projects from the council for community and economic
development to the executive director of the development office;
transferring authority to approve county and municipal economic
opportunity development district projects from the council for
community and economic development to the development office;
authorizing the development office to determine economic viability
of waste tire processing facilities;
transferring authority to
approve disposal of equipment purchased with workforce development
grant funds from council for community and economic development
to development office; transferring authority to administer the
state fund for community and technical college and workforce
development from council for community and economic development to development office;
authorizing executive director of
development office to approve expenditure of grant funds;
authorizing executive director of development office to
appoint
advisory committee to review applications for workforce
development grants; transferring authority to administer economic
development project bridge loan fund from the council for
community and economic development to the economic development
authority;
expiring terms of members of public energy authority
board; reconstituting composition of public energy authority
board; providing for governor to chair the public energy authority
board; restoring authority of public energy authority to initiate,
acquire, construct, finance or issue bonds for electric power
projects and transmission facilities; restoring authority of
public energy authority to
exercise powers of eminent domain;
providing for sunset review of public energy authority;
modifying
membership of the jobs investment trust board; providing for the
composition and appointment of the jobs investment trust fund
board;
providing for governor to chair the jobs investment trust
board
; authorizing the governor to appoint an executive director
of the jobs investment trust board
;
modifying salary for the
executive director of the jobs investment trust fund board;
establishing the water development authority as an independent
agency within the executive branch;
modifying composition of the
water development authority; providing for governor to chair the
water development authority;
authorizing the governor to appoint
an executive director of the water development authority
;
modifying composition of school building authority; increasing
terms of certain members of school building authority; providing
for governor to chair the school building authority;
authorizing
the governor to appoint an executive director of the school
building authority
;
authorizing governor to remove members of
school building authority for cause;
reconstituting composition
of infrastructure and jobs development council; providing for
governor to chair the infrastructure and jobs development council;
providing for governor to chair the housing development fund
board
; authorizing the governor to appoint an executive director
of the housing development fund board
;
and providing for
reappointment of executive director of certain boards in cases of
dismissal.
On motion of Senator Bailey, the following amendments to the
House of Delegates amendments to the bill (Eng. S. B. No. 1002)
were reported by the Clerk, considered simultaneously, and
adopted:
On page two, by striking out everything after the article
heading and inserting in lieu thereof the following:
§5-1-28. Prerequisites for bond issuance and refunding.
(a) On and after the first day of February, two thousand
five, bonds may not be issued or refunded by the state of West
Virginia or any of its agencies, boards or commissions, without
the express written direction of the governor, if:
(1) The ultimate user of the proceeds of the bonds is the
state of West Virginia or any of its agencies, boards, commissions or departments; or
(2) The issuance or refunding of the bonds implicates the
state's credit rating.
(b) Prior to any state agency, board or commission
participating in any formal presentation to any nationally
recognized rating agency, with respect to the proposed issuance
or refunding of bonds where the ultimate user of the proceeds of
the bonds is the state of West Virginia or any of its agencies,
boards, commissions or departments, or the issuance or refunding
of the bonds implicates the state's credit rating, the chair or
director of the state agency, board or commission shall provide
written notice to the governor, the president of the Senate and
the speaker of the House of Delegates, of the date, time and place
of the formal presentation at least ten days in advance.
(c) All bond sale requirements established in this code shall
apply unless contrary to the provisions of this section.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.
§5B-1-1. Department of commerce; office of secretary of
department of commerce.
(a) The secretary of commerce is the chief executive officer
of the department. The governor shall appoint the secretary, by
and with the advice and consent of the Senate, for the term for
which the governor is elected. Any reference in this code to the
bureau of commerce means the department of commerce. Any
reference in this code to the commissioner of the department of commerce means the secretary of commerce. As used in this
article, "secretary" means the secretary of commerce and
"department" means department of commerce.
(b) The department may receive federal funds.
(c) The secretary serves at the will and pleasure of the
governor. The annual salary of the secretary is ninety thousand
dollars.
§5B-1-2. Agencies, boards, commissions, divisions and offices
comprising the department of commerce.
The department of commerce consists of the following
agencies, boards, commissions, divisions and offices, including
all of the allied, advisory, affiliated or related entities which
are incorporated in and shall be administered as part of the
department of commerce:
(1) Division of labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational safety and health review commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of manufactured housing construction and safety
provided in article nine, chapter twenty-one of this code;
(2) Office of miners' health, safety and training provided in
article one, chapter twenty-two-a of this code. The following
boards are transferred to the office of miners' health, safety and
training for purposes of administrative support and liaison with
the office of the governor:
(A) Board of coal mine health and safety and coal mine safety and technical review committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of miner training, education and certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine inspectors' examining board provided in article
nine, chapter twenty-two-a of this code;
(3) The West Virginia development office, which includes the
division of tourism and the tourism commission provided in article
two, chapter five-b of this code;
(4) Division of natural resources and natural resources
commission provided in article one, chapter twenty of this code;
(5) Division of forestry provided in article one-a, chapter
nineteen of this code; and
(6) Geological and economic survey provided in article two,
chapter twenty-nine of this code.
§5B-1-3. Powers and duties of secretary, administrators,
division heads and employees.
(a) The secretary controls and supervises the department and
is responsible for the work of each department employee.
(b) The secretary has the power and authority specified in
this article, in article two, chapter five-f of this code, and as
otherwise specified in this code.
(c) The secretary may assess agencies, boards, commissions,
divisions and offices in the department for the payment of
expenses of the office of the secretary.
(d) The secretary may employ professional staff, including, but not limited to, certified public accountants, economists and
attorneys, assistants and other employees as necessary for the
efficient operation of the department.
(e) The secretary and administrators, division heads and
other employees of the department shall perform their duties as
specified in this code and as may be prescribed by the governor.
§5B-1-4. Reports by secretary.
The secretary shall report annually to the governor
concerning the conduct of the department and make other reports
as the governor may require.
§5B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate his or her powers and duties to
assistants and employees, but the secretary is responsible for all
official acts of the department.
§5B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of
confidentiality. -- Information that would be confidential under
the laws of this state when provided to a division, agency, board,
commission or office within the department is confidential when
that information is provided to the secretary or an employee in
the office of the secretary. The confidential information may be
disclosed only: (1) To the applicable agency, board, commission
or division of the department to which the information relates;
or (2) in the manner authorized by provisions of this code
applicable to that agency, board, commission or division. This
confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code.
(b) Interdepartmental communication of confidential
information. -- Notwithstanding any provision of this code to the
contrary, information that is confidential pursuant to this code
in the possession of any division, agency, board, commission or
office of the department may be disclosed to the secretary or an
employee in the office of the secretary. The secretary or
employee shall safeguard the information and may not further
disclose the information except under the same conditions,
restrictions and limitations applicable to the administrator of
the agency, board, commission, division or office of the
department in whose hands the information is confidential. This
subsection does not require disclosure of individually
identifiable health care or other information that is prohibited
from disclosure by federal law. This subsection is a specific
exemption from the disclosure requirements of article one, chapter
twenty-nine-b of this code.
(c) The provisions of this section:
(1) Apply only to information that is actually disclosed by
a division, agency, board, commission or office within a
department to the secretary, or an employee in the office of the
secretary, of that department;
(2) Do not authorize disclosure or exempt from the provisions
of article one, chapter twenty-nine-b of this code any
confidential information of a division, agency, board, commission
or office within a department to any person or entity other than the secretary, or an employee in the office of the secretary, of
that department;
(3) Apply only to disclosure between a division, agency,
board, commission or office within a department and the secretary,
or an employee in the office of the secretary, of that department.
§5B-1-7. Right of appeal from interference with functioning of
agency.
Any governmental entity may appeal to the governor for review
upon a showing that application of the secretary's authority may
interfere with the successful functioning of that entity. The
governor's decision controls on appeal.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-2. Council for community and economic development;
members, appointment and expenses; meetings;
appointment and compensation of director
.
(a) The council for community and economic development,
within the West Virginia development office, is a body corporate
and politic, constituting a public corporation and government
instrumentality. Membership on the council consists of:
(1) No less than nine nor more than eleven members to be
appointed by the governor, with the advice and consent of the
Senate, representing community or regional interests, including
economic development, commerce, banking, manufacturing, the
utility industry, the mining industry, the telecommunications/data
processing industry, small business, labor, tourism or
agriculture. Provided, That One member appointed pursuant to this subsection One such member shall be a member of a regional
planning and development council. Of the members representing
community or regional interests there shall be at least Of these
members at least three members from shall represent each
congressional district of the state and they shall be appointed
appointments shall be made in such a manner as to provide a broad
geographical distribution of members of the council;
(2) Four at-large members to be appointed by the governor
with the advice and consent of the Senate;
(3) One member to be appointed by the governor from a list of
two persons recommended by the speaker of the House of Delegates:
Provided, That on and after the effective date of the amendment
and reenactment of this section in the year two thousand three,
this subdivision shall be of no force or effect and the term of
the member previously appointed pursuant to this subdivision shall
expire;
(4) One member to be appointed by the governor from a list of
two persons recommended by the president of the Senate: Provided,
That on and after the effective date of the amendment and
reenactment of this section in the year two thousand three, this
subdivision shall be of no force or effect and the term of the
member previously appointed pursuant to this subdivision shall
expire;
(5) The president of the West Virginia economic development
council; and
(6) (4)
The chair, or his or her designee, of the tourism commission created pursuant to the provisions of section eight of
this article.
In addition, the president of the Senate and the speaker of
the House of Delegates, or his or her designee, shall serve as ex
officio nonvoting members.
(b) The governor shall appoint appoints the appointed members
of the council to four-year terms. Any A member whose term has
expired shall continues to serve until his or her the successor
has been is duly appointed and qualified. Any person appointed
to fill a vacancy shall serve only for the unexpired term. Except
as otherwise provided in this section, any member is eligible for
reappointment. In cases of any vacancy in the office of a member,
the vacancy shall be filled by A vacancy is filled by appointment
by the governor in the same manner as the original appointment.
A member appointed to fill a vacancy serves for the remainder of
the unexpired term.
(c) Members of the council are not entitled to compensation
compensated for services performed as members, but are entitled
to reimbursement for all receive reasonable and necessary expenses
actually incurred in the performance of their duties
in a manner
consistent with guidelines of the travel management office of the
department of administration.
A majority of the voting members
constitute a quorum for the purpose of conducting business. The
council shall elect its chair for a term to run concurrent with
the term of office of the member elected as chair. The chair is
eligible for successive terms in that position.
(d) The council governor shall employ appoint an executive
director of the West Virginia development office who is qualified
for the position by reason of his or her extensive education and
experience in the field of professional economic development. The
executive director shall serve at the will and pleasure of the
council governor. The salary of the director shall annually be
fixed by the council. The director shall have overall management
responsibility and administrative control and supervision within
the West Virginia development office. It is the intention of the
Legislature that the director provide professional and technical
expertise in the field of professional economic and tourism
development in order to support the policy-making functions of the
council, but that the director not be a public officer, agent,
servant or contractor within the meaning of section thirty-eight,
article VI of the constitution of West Virginia and not be a
statutory officer within the meaning of section one, article two,
chapter five-f of this code. Subject to the provisions of the
contract provided in section four of this article, the director
may hire and fire economic development representatives employed
pursuant to the provisions of section five of this article.
(e) The executive director of the West Virginia development
office may promulgate rules to carry out the purposes and programs
of the West Virginia development office to include generally the
programs available and the procedure and eligibility of
applications relating to assistance under the programs. These
rules are not subject to the provisions of chapter twenty-nine-a of this code, but shall be filed with the secretary of
state. The
executive director may adopt any of the rules previously
promulgated by the council for community and economic development.
§5B-2-3. Powers and duties of council for community and economic
development.
(a) The council for community and economic development shall
enhance economic growth and development through the development
of a comprehensive economic development strategy for West
Virginia. "Comprehensive economic development strategy" means a
plan that outlines strategies and activities designed to continue,
diversify or expand the economic base of the state as a whole;
create jobs; develop a highly skilled work force; facilitate
business access to capital, including venture capital; advertise
and market the resources offered by the state with respect to the
needs of business and industry; facilitate cooperation among
local, regional and private economic development enterprises;
improve infrastructure on a state, regional and community level;
improve the business climate generally; and leverage funding from
sources other than the state, including federal and private
sources.
(b) The council shall develop a certified development
community program and provide funding assistance to the
participating economic development corporations or authorities
through a matching grant program. The council shall establish
criteria for awarding matching grants to the corporations or
authorities within the limits of funds appropriated by the Legislature for the program. The matching grants to corporations
or authorities eligible under the criteria shall be in the amount
of thirty thousand dollars for each fiscal year, if sufficient
funds are appropriated by the Legislature. The West Virginia
development office shall recognize existing county, regional or
multicounty corporations or authorities where appropriate.
In developing its plan, the West Virginia development office
shall consider resources and technical support available through
other agencies, both public and private, including, but not
limited to, the state college and university systems; the West
Virginia housing development fund; the West Virginia economic
development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table;
the West Virginia chamber of commerce; regional planning and
development councils; regional partnership for progress councils;
and state appropriations.
(c) The council shall promulgate rules to carry out the
purposes and programs of the West Virginia development office to
include generally the programs available, and the procedure and
eligibility of applications relating to assistance under the
programs. These rules are not subject to the provisions of
chapter twenty-nine-a of this code, but shall be filed with the
secretary of state. Any new rules promulgated by the council
shall be promptly submitted to the joint commission created in
article three of this chapter. The current rules shall be
submitted to the joint commission within thirty days of the effective date of this section.
§5B-2-8. Division of tourism and tourism commission created;
members, appointment and expenses.
(a) There is hereby created within the West Virginia
development office the division of tourism and an independent
tourism commission, which is a body corporate and politic,
constituting a public corporation and government instrumentality.
Membership on the council shall consist The commission consists
of thirteen members:
(1) Nine members to be appointed by the governor, with the
advice and consent of the Senate, representing participants in the
state's tourism industry. At least seven of the members shall be
from the private sector. Of the nine members so appointed, one
shall represent a convention and visitors bureau and another shall
be a member of a convention and visitors bureau. In making the
appointments the governor may select from a list provided by the
West Virginia hospitality and travel association of qualified
applicants. Of the nine members so appointed, no more than three
shall be from each congressional district within the state and
shall be appointed to provide the broadest geographic distribution
which is feasible;
(2) One member to be appointed by the governor from the
membership of the council for community and economic development
created pursuant to the provisions of section two of this article;
(3) One member to be appointed by the governor to represent
public sector nonstate participants in the tourism industry within the state;
(4) The secretary of transportation or his or her designee,
ex officio; and
(5) The director of the division of natural resources or his
or her designee, ex officio.
(b) Each member appointed by the governor shall serve
staggered terms of four years. Any member whose term has expired
shall serve until his or her successor has been appointed. Any
person appointed to fill a vacancy shall serve only for the
unexpired term. Any member shall be eligible for reappointment.
In cases of vacancy in the office of member, such vacancy shall
be filled by the governor in the same manner as the original
appointment.
(c) Members of the commission shall not be entitled to
compensation for services performed as members. A majority of
these members shall constitute a quorum for the purpose of
conducting business. The governor shall appoint a chair of the
commission for a term to run concurrent with the term of the
office of the member appointed to be the chair. The chair is
eligible for successive terms in that position.
§5B-2-14. Certified development community program.
The certified development community program is continued and
is transferred to, incorporated in and administered as a program
of the West Virginia development office. The program shall
provide funding assistance to the participating economic
development corporations or authorities through a matching grant program. The West Virginia development office shall establish
criteria for awarding matching grants to the corporations or
authorities within the limits of funds appropriated by the
Legislature for the program. The matching grants to eligible
corporations or authorities are in the amount of thirty thousand
dollars for each fiscal year, if sufficient funds are appropriated
by the Legislature. The West Virginia development office shall
recognize existing county, regional or multicounty corporations
or authorities where appropriate.
In developing its plan, the West Virginia development office
shall consider resources and technical support available through
other agencies, both public and private, including, but not
limited to, the state college and university systems; the West
Virginia housing development fund; the West Virginia economic
development authority; the West Virginia parkways, economic
development and tourism authority; the West Virginia round table;
the West Virginia chamber of commerce; regional planning and
development councils; regional partnership for progress councils;
and state appropriations.
ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.
§5B-2E-3. Definitions.
As used in this article, unless the context clearly indicates
otherwise:
(1) "Agreement" means a tourism development agreement entered
into, pursuant to section six of this article, between the
development office and an approved company with respect to a tourism development project.
(2) "Approved company" means any eligible company approved by
the development office pursuant to section five of this article
seeking to undertake a tourism development project.
(3) "Approved costs" means:
(A) Included costs:
(i) Obligations incurred for labor and to vendors,
contractors, subcontractors, builders, suppliers, delivery persons
and material persons in connection with the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(ii) The costs of acquiring real property or rights in real
property and any costs incidental thereto;
(iii) The cost of contract bonds and of insurance of all
kinds that may be required or necessary during the course of the
acquisition, construction, equipping, installation or expansion
of a tourism development project which is not paid by the vendor,
supplier, delivery person, contractor or otherwise provided;
(iv) All costs of architectural and engineering services,
including, but not limited to: Estimates, plans and
specifications, preliminary investigations and supervision of
construction, installation, as well as for the performance of all
the duties required by or consequent to the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(v) All costs required to be paid under the terms of any contract for the acquisition, construction, equipping,
installation or expansion of a tourism development project;
(vi) All costs required for the installation of utilities,
including, but not limited to: Water, sewer, sewer treatment,
gas, electricity, communications and off-site construction of
utility extensions to the boundaries of the real estate on which
the facilities are located, all of which are to be used to improve
the economic situation of the approved company in a manner that
allows the approved company to attract persons; and
(vii) All other costs comparable with those described in this
subdivision;
(B) Excluded costs. -- The term "approved costs" does not
include any portion of the cost required to be paid for the
acquisition, construction, equipping and installation or expansion
of a tourism development project that is financed with
governmental incentives, grants or bonds or for which the eligible
taxpayer elects to qualify for other tax credits, including, but
not limited to, those provided by article thirteen-q, chapter
eleven of this code.
(4) "Base tax revenue amount" means the average monthly
amount of consumers sales and service tax collected by an approved
company, based on the twelve-month period ending immediately prior
to the opening of a new tourism development project for business,
as certified by the state tax commissioner.
(5) "Council" means the council for community and economic
development as provided in article two of this chapter.
(6) "Development office" means the West Virginia development
office as provided in article two of this chapter.
(7) (6) "Crafts and products center" means a facility
primarily devoted to the display, promotion and sale of West
Virginia products and at which a minimum of eighty percent of the
sales occurring at the facility are of West Virginia arts, crafts
or agricultural products.
(8) (7) "Eligible company" means any corporation, limited
liability company, partnership, limited liability partnership,
sole proprietorship, business trust, joint venture or any other
entity operating or intending to operate a tourism development
project, whether owned or leased, within the state that meets the
standards required by the council development office. An eligible
company may operate or intend to operate directly or indirectly
through a lessee.
(9) (8) "Entertainment destination center" means a facility
containing a minimum of two hundred thousand square feet of
building space adjacent or complementary to an existing tourism
attraction, an approved tourism development project or a major
convention facility and which provides a variety of entertainment
and leisure options that contain at least one major theme
restaurant and at least three additional entertainment venues,
including, but not limited to, live entertainment, multiplex
theaters, large-format theaters, motion simulators, family
entertainment centers, concert halls, virtual reality or other
interactive games, museums, exhibitions or other cultural and leisure time activities. Entertainment and food and drink options
shall occupy a minimum of sixty percent of total gross area, as
defined in the application, available for lease and other retail
stores shall occupy no more than forty percent of the total gross
area available for lease.
(10) (9) "Final approval" means the action taken by the
council executive director of the development office qualifying
the eligible company to receive the tax credits provided in this
article.
(11) (10) "Preliminary approval" means the action taken by
the executive director of the development office conditioning
final approval. by the council
(12) (11) "State agency" means any state administrative body,
agency, department, division, board, commission or institution
exercising any function of the state that is not a municipal
corporation or political subdivision.
(13) (12) "Tourism attraction" means a cultural or historical
site, a recreation or entertainment facility, an area of natural
phenomenon or scenic beauty, a West Virginia crafts and products
center or an entertainment destination center. A tourism
development project or attraction shall does not include any of
the following:
(A) Lodging facilities facility, unless:
(i) The facilities constitute facility constitutes a portion
of a tourism development project and represent represents less
than fifty percent of the total approved cost of the tourism development project, or the facilities are facility is to be
located on recreational property owned or leased by the state or
federal government and the facilities have facility has received
prior approval from the appropriate state or federal agency;
(ii) The facilities involve facility involves the restoration
or rehabilitation of a structure that is listed individually in
the national register of historic places or are is located in a
national register historic district and certified by the state
historic preservation officer as contributing to the historic
significance of the district and the rehabilitation or restoration
project has been approved in advance by the state historic
preservation officer; or
(iii) The facilities involve facility involves the
construction, reconstruction, restoration, rehabilitation or
upgrade of a full-service lodging facility or the reconstruction,
restoration, rehabilitation or upgrade of an existing structure
into a full-service lodging facility having not less than five
hundred guest rooms, with construction, reconstruction,
restoration, rehabilitation or upgrade costs exceeding ten million
dollars;
(B) Facilities that are A facility that is primarily devoted
to the retail sale of goods, other than an entertainment
destination center, a West Virginia crafts and products center or
a tourism development project where the sale of goods is a
secondary and subordinate component of the project; and
(C) Recreational facilities that do A recreational facility that does not serve as a likely destination where individuals who
are not residents of the state would remain overnight in
commercial lodging at or near the new tourism development project
or existing attraction.
(14) (13) "Tourism development project" means the
acquisition, including the acquisition of real estate by a
leasehold interest with a minimum term of ten years, construction
and equipping of a tourism attraction; the construction and
installation of improvements to facilities necessary or desirable
for the acquisition, construction, installation or expansion of
a tourism attraction, including, but not limited to, surveys,
installation of utilities, which may include water, sewer, sewage
treatment, gas, electricity, communications and similar
facilities; and off-site construction of utility extensions to the
boundaries of the real estate on which the facilities are located,
all of which are to be used to improve the economic situation of
the approved company in a manner that allows the approved company
to attract persons.
(15) (14) "Tourism development project tax credit" means the
tourism development project tax credit allowed by section seven
of this article.
§5B-2E-4. Additional powers and duties of the development office.
The development office has the following powers and duties,
in addition to those set forth in this case, necessary to carry
out the purposes of this article including, but not limited to:
(1) Make preliminary and final approvals of all applications for tourism development projects and enter into agreements
pertaining to tourism development projects with approved
companies;
(2) Employ fiscal consultants, attorneys, appraisers and
other agents as the executive director of the development office
finds necessary or convenient for the preparation and
administration of agreements and documents necessary or incidental
to any tourism development project; and
(3) Impose and collect fees and charges in connection with
any transaction.
§5B-2E-5. Tourism development project application; evaluation
standards; consulting services; preliminary and
final approval of projects; limitation of amount
annual tourism development project tax credit.
(a) Each eligible company that seeks to qualify a tourism
development project for the tax credit provided by this article
must file a written application for approval of the project with
the development office.
(b) With respect to each eligible company making an
application to the development office for the tourism development
project tax credit, the development office shall make inquiries
and request documentation, including a completed application, from
the applicant that shall include: A description and location of
the project; capital and other anticipated expenditures for the
project and the sources of funding therefor; the anticipated
employment and wages to be paid at the project; business plans that indicate the average number of days in a year in which the
project will be in operation and open to the public; and the
anticipated revenues and expenses generated by the project.
(c) Based upon a review of the application and additional
documentation provided by the eligible company, if the executive
director of the development office determines that the applicant
and the tourism development project may reasonably satisfy the
criteria for final approval set forth in subsection (d) of this
section, then the director of the development office may grant a
preliminary approval of the applicant and the tourism development
project.
(d) After preliminary approval by the executive director of
the development office, the development office shall engage the
services of a competent consulting firm or firms to analyze the
data made available by the applicant and to collect and analyze
additional information necessary to determine that, in the
independent judgment of the consultant, the tourism development
project:
(1) Likely will attract at least twenty-five percent of its
visitors from outside of this state;
(2) Will have approved costs in excess of one million
dollars;
(3) Will have a significant and positive economic impact on
the state considering, among other factors, the extent to which
the tourism development project will compete directly with or
complement existing tourism attractions in the state and the amount by which increased tax revenues from the tourism
development project will exceed the credit given to the approved
company;
(4) Will produce sufficient revenues and public demand to be
operating and open to the public for a minimum of one hundred days
per year; and
(5) Will provide additional employment opportunities in the
state.
(e) The applicant shall pay to the development office, prior
to the engagement of the services of a competent consulting firm
or firms pursuant to the provisions of subsection (d) of this
section, for the cost of the consulting report or reports and
shall cooperate with the consulting firm or firms to provide all
of the data that the consultant considers necessary or convenient
to make its determination under subsection (d) of this section.
(f) The executive director of the development office, within
thirty days following receipt of the consultant's report or
reports, shall decide whether to recommend the tourism development
project to the council for final approval. If the director of the
development office recommends the tourism development project to
the council, he or she shall submit the project application, the
consulting report or reports and other information regarding the
project to the council.
(g) The council shall review all applications properly
submitted to the council for conformance to statutory and
regulatory requirements, review, in light of the consultant's report or reports, the reasonableness of the project's budget and
timetable for completion, and, in addition to the criteria for
final approval set forth in subsection (d) of this section, the
following criteria:
(1) The quality of the proposed tourism development project
and how it addresses economic problems in the area in which the
tourism development project will be located;
(2) Whether there is substantial and credible evidence that
the tourism development project is likely to be started and
completed in a timely fashion;
(3) Whether the tourism development project will, directly or
indirectly, improve the opportunities in the area where the
tourism development project will be located for the successful
establishment or expansion of other industrial or commercial
businesses;
(4) Whether the tourism development project will, directly or
indirectly, assist in the creation of additional employment
opportunities in the area where the tourism development project
will be located;
(5) Whether the project helps to diversify the local economy;
(6) Whether the project is consistent with the goals of this
article;
(7) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(8) The ability of the eligible company to carry out the
tourism development project.
(h) (g) The council development office may establish other
criteria for consideration when approving the applications.
(i) (h) The council executive director of the development
office may give its final approval to the applicant's application
for a tourism development project and may grant to the applicant
the status of an approved company: Provided, That the total
amount of tourism development project tax credits for all approved
companies may not exceed one million five hundred thousand dollars
each calendar year. The council executive director of the
development office shall act to approve or not approve any
application within thirty sixty days following the receipt of the
application consultant's report or reports or the receipt of any
additional information requested by the council development
office, whichever is later. The decision by the executive
director of the development office and the council is final.
§5B-2E-6. Agreement between development office and approved
company.
The development office, upon grant of the council's final
approval of an application by the executive director, may enter
into an agreement with any approved company with respect to its
tourism development project. The terms and provisions of each
agreement shall include, but not be limited to:
(1) The amount of approved costs of the project that qualify
for the sales tax credit, provided for in section seven of this
article. Within three months of the completion date, the approved
company shall document the actual cost of the project through a certification of the costs to the development office by an
independent certified public accountant acceptable to the
development office; and
(2) A date certain by which the approved company shall have
completed and opened the tourism development project to the
public. Any approved company that has received final approval may
request and the development office may grant an extension or
change, however, in no event shall the extension exceed three
years from the date of final approval to the completion date
specified in the agreement with the approved company.
§5B-2E-9. Promulgation of rules.
The council executive director of the development office may
promulgate rules to implement the tourism development project
application approval process and to describe the criteria and
procedures it has established in connection therewith. These
rules are not subject to the provisions of chapter twenty-nine-a
of this code but shall be filed with the secretary of state.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-4. West Virginia public energy authority continued; West
Virginia public energy board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
authority; appointment.
(a)The West Virginia public energy authority heretofore
created is hereby is continued. The authority is a governmental instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the
carrying out of its purposes and duties are determined to be
essential governmental functions and for a public purpose.
(b)The authority shall be is controlled, managed and
operated by a nine seven member board known as the West Virginia
public energy authority board, which is hereby continued. The
seven members include the governor or designee; the secretary of
the department of environmental protection or designee; the
director of the economic development authority or designee; and
four members representing the general public
. The nine members
of the board shall be The public members are appointed by the
governor, by and with the advice and consent of the Senate, for
terms of one, two, three and four years, respectively. Two
members shall be appointed to serve a term of two years; two
members shall be appointed to serve a term of three years; two
members shall be appointed to serve a term of four years; two
members shall be appointed to serve a term of five years; and one
member shall be appointed to serve a term of six years.
(c) On the thirty-first day of March, two thousand five, the
terms of all appointed members, appointed prior to the amendment
of this section during the first extraordinary session of the
seventy-seventh Legislature, expire. Not later than the
thirty-first day of March, two thousand five, the governor
appoints the public members required in subsection (b) of this
section, to assume the duties of the office immediately, pending the advice and consent of the Senate.
(d) The successor of each such appointed member shall be is
appointed for a four-year term. term of five years, except that
any person appointed to fill a vacancy occurring prior to the
expiration of the term for which his predecessor was appointed
shall be appointed only for the remainder of such term A vacancy
is filled by appointment by
the governor in the same manner as the
original appointment. A member appointed to fill a vacancy serves
for the remainder of the unexpired term.
Each board member shall
serve until the appointment of his serves until a
successor is
appointed.
(e) No more than five three of the public board members shall
may at any one time belong to the same political party. No more
than four two public members of the board shall may be employed
by or associated with any industry this the authority is empowered
to affect. Two members of the board One member shall be persons
who have a person with significant experience in the advocacy of
environmental protection. Board members may be reappointed to
serve additional terms.
(f) All members of the board shall be citizens of the state.
Before entering upon his or her engaging in their duties, each
member of the board shall comply with the requirements of article
one, chapter six of this code and give bond in the sum of
twenty-five thousand dollars in the manner provided in article
two, chapter six of this code. The governor may remove any board
member for cause as provided in article six, chapter six of this code.
Annually (g) The governor serves as chair. The board shall
elect annually elects one of its public members as chairman and
another as vice chairman vice chair, and shall appoint appoints
a secretary-treasurer who need not be a member of the board. Five
(h) Four members of the board shall constitute a quorum and
the affirmative vote of the majority of members present at any
meeting shall be is necessary for any action taken by vote of the
board. No A vacancy in the membership of the board shall does not
impair the rights of a quorum by such vote to exercise all the
rights and perform all the duties of the board and the authority.
(i) The person appointed as secretary-treasurer, including a
board member if he is so appointed, shall give bond in the sum of
fifty thousand dollars in the manner provided in article two,
chapter six of this code.
(j) Each public member of the board shall receive receives
the same compensation and expense reimbursement as is paid to
members of the Legislature for their interim duties as recommended
by the citizens legislative compensation commission and authorized
by law for each day or portion thereof engaged in the discharge
of official duties. All such expenses incurred by the board shall
be shall be paid
in a manner consistent with guidelines of the
travel management office of the department of administration and
are payable solely from funds of the authority or from funds
appropriated to the authority for such purpose by the Legislature.
and no Liability or obligation shall be is not incurred by the authority beyond the extent to which moneys are available from
funds of the authority or from such appropriations.
There shall also be a director of the authority appointed by
(k) The governor may appoint an executive director, with the
advice and consent of the Senate, who shall serve serves at the
governor's will and pleasure who shall be. The director is
responsible for managing and administering the daily functions of
the authority and for performing any and all other functions
necessary or helpful to the effective functioning operation of the
authority. together with all other functions and powers as may be
delegated by the board.
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The West Virginia public energy authority is hereby granted
has and may exercise all powers necessary or appropriate to carry
out and effectuate execute its corporate purpose. The authority
shall have the power and capacity to may:
(1) Adopt, and from time to time amend and repeal:
Bylaws bylaws necessary and proper for the regulation of its
affairs and the conduct of its business and rules to implement and
make effective its powers and duties, such rules to be promulgated
in accordance with the provisions of chapter twenty-nine-a of this
code.
(2) Adopt and use an official seal and alter the same at
pleasure.
(3) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under this article. Any actions
against the authority shall be brought in the circuit court of
Kanawha County.
(5) Foster, encourage and promote the mineral development
industry. The authority is encouraged to maximize the use of the
West Virginia mineral development industry, but is not prohibited
from utilizing nonstate mineral resources.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
industry.
(8) Acquire, whether by purchase, construction, gift, lease,
lease-purchase or otherwise, any electric power project or natural
gas transmission project. In the event that an electric power
project to be constructed pursuant to this article is designed to
utilize coal wastes for the generation of electricity or the
production of other energy, such project shall also be capable of
using coal as its primary energy input: Provided, That it shall
be demonstrated to the authority's satisfaction that quantities
of coal wastes exist in amounts sufficient to provide energy input
for such project for the term of the bonds or notes issued by the authority to finance the project and are accessible to the
project.
(9) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of,
to persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon such terms and conditions as the
public energy authority board may deem advisable.
(10) Finance one or more electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition,
by purchase, construction or otherwise, of any such project or
projects.
(11) Issue bonds for the purpose of financing the cost of
acquisition and construction of one or more electric power
projects or natural gas transmission projects or any additions,
extensions or improvements thereto which will be sold, leased with
an option by the lessee to purchase, leased or otherwise disposed
of to persons other than governmental agencies or for the purpose
of loaning the proceeds thereof to persons other than governmental
agencies for the acquisition and construction of said projects or
both. Such bonds shall be issued and the payment of such bonds
secured in the manner provided by the applicable provisions of
sections seven, eight, nine, ten, eleven, twelve, thirteen and
seventeen, article two-c, chapter thirteen of this code:
Provided, That the principal and interest on such bonds shall be payable out of the revenues derived from the lease, lease with an
option by the lessee to purchase, sale or other disposition of or
from loan payments in connection with the electric power project
or natural gas transmission project for which the bonds are
issued, or any other revenue derived from such electric power
project or natural gas transmission project.
(12) In the event that the electric power project or natural
gas transmission project is to be owned by a governmental agency,
apply to the economic development authority for the issuance of
bonds payable solely from revenues as provided in article fifteen,
chapter thirty-one of this code: Provided, That the economic
development authority shall not issue any such bonds except by an
act of general law: Provided, however, That the authority shall
require that in the construction of any such project, prevailing
wages shall be paid as part of a project specific agreement which
also takes into account terms and conditions contained in the West
Virginia - Ohio valley market retention and recovery agreement or
a comparable agreement.
(13) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(14) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such real property
or parts thereof or rights therein, rights-of-way, property, rights, easements and interests it deems necessary for carrying
out the provisions of this article and compensation shall be paid
for public or private lands so taken; and the authority may sell
any of the real property or parts thereof or rights therein,
rights-of-way, property, rights, easements and interests acquired
hereunder in such manner and upon such terms and conditions as the
authority deems proper: Provided, That if the authority
determines that land or an interest therein acquired by the
authority through the exercise of the power of eminent domain for
the purpose of this article is no longer necessary or useful for
such purposes, and if the authority desires to sell such land or
interest therein, the authority shall first offer to sell such
land or interest to the owner or owners from whom it was acquired,
at a price equal to its fair market value: Provided, however,
That if the prior owner or owners shall decline to reacquire the
land or interest therein, the authority shall be authorized to
dispose of such property by direct sale, auction or competitive
bidding. In no case shall such land or an interest therein
acquired under this subdivision be sold for less than its fair
market value. This article does not authorize the authority to
take or disturb property or facilities belonging to any public
utility or to a common carrier, which property or facilities are
required for the proper and convenient operation of such public
utility or common carrier, except for the acquisition of easements
or rights-of-way which will not unreasonably interfere with the
operation of the property or facilities of such public utility or common carrier, and in the event of the taking or disturbance of
property or facilities of public utility or common carrier,
provision shall be made for the restoration, relocation or
duplication of such property or facilities elsewhere at the sole
cost of the authority.
The term "real property" as used in this article is defined
to include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said term, and
includes also any and all interests in such property less than
full title, such as easements, rights-of-way, uses, leases,
licenses and all other incorporeal hereditaments and every estate,
interest or right, legal or equitable, including terms for years
and liens thereon by way of judgments, mortgages or otherwise, and
also all claims for damages for such real estate.
For the purposes of this section "fair market value" shall be
determined by an appraisal made by an independent person or firm
chosen by the authority. The appraisal shall be performed using
the principles contained in the "Uniform Appraisal Standards for
Federal Land Acquisitions" published under the auspices of the
interagency land acquisition conference, United States government
printing office, 1972.
(15) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers: Provided, That if
any electric power project or natural gas transmission project is to be constructed by a person other than a governmental agency,
and with whom the authority has contracted to lease, sell or
finance such project upon its completion, then the authority shall
not be required to comply with the provisions of article
twenty-two, chapter five of this code requiring the solicitation
of competitive bids for the construction of such a project.
(16) Employ managers, superintendents and other employees,
and retain or contract with consulting engineers, financial
consultants, accountants, architects, attorneys, and such other
consultants and independent contractors as are necessary in its
judgment to carry out the provisions of this article, and fix the
compensation or fees thereof. All expenses thereof shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or
loan payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated for such
purpose by the Legislature.
(17) Receive and accept from any federal agency, or any other
source, grants for or in aid of the construction of any project
or for research and development with respect to electric power
projects, natural gas transmission projects or other energy
projects, and receive and accept aid or contribution from any
source of money, property, labor or other things of value to be
held, used and applied only for the purpose for which such grants
and contributions are made.
(18) Purchase property coverage and liability insurance for any electric power project or natural gas transmission project or
other energy project and for the principal office and suboffices
of the authority, insurance protecting the authority and its
officers and employees against liability, if any, for damage to
property or injury to or death of persons arising from its
operations and any other insurance which may be provided for under
a resolution authorizing the issuance of bonds or in any trust
agreement securing the same.
(19) Charge, alter and collect transportation fees and other
charges for the use or services of any natural gas transmission
project as provided in this article.
(20) Charge and collect fees or other charges from any energy
project undertaken as a result of this article.
(21) When the electric power project is owned and operated by
the authority, charge reasonable fees in connection with the
making and providing of electric power and the sale thereof to
corporations, states, municipalities or other entities in the
furtherance of the purposes of this article.
(22) Purchase and sell electricity or other energy produced
by an electric power project in and out of the state of West
Virginia.
(23) Enter into wheeling contracts for the transmission of
electric power over the authority's or another party's lines.
(24) Make and enter into contracts for the construction of a
project facility and joint ownership with another utility and the
provisions of this article shall not constrain the authority from participating as a joint partner therein.
(25) Make and enter into joint ownership agreements.
(26) Establish or increase reserves from moneys received or
to be received by the authority to secure or to pay the principal
of and interest on the bonds issued by the economic development
authority pursuant to the provisions of article fifteen, chapter
thirty-one of this code or bonds issued by the authority.
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution
company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the public service commission of West Virginia.
(28) Engage in market research, feasibility studies,
commercial research, and other studies and research pertaining to
electric power projects and natural gas transmission projects or
any other functions of the authority pursuant to this article.
(29) Enter upon any lands, waters and premises in the state
for the purpose of making surveys and examinations as it may deem
necessary or convenient for the purpose of this article, and such
entry shall not be deemed a trespass, nor shall an entry for such
purposes be deemed an entry under any condemnation proceedings
which may be then pending, and the authority shall make
reimbursement for any actual damages resulting to such lands,
waters and premises as a result of such activities.
(30) Participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of Congress establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question
pending therein, which requires the approval of the creditors
participating in any reorganization proceeding or receivership,
exchange any evidence of such indebtedness for any property,
security or evidence of indebtedness offered as a part of the
reorganization of such responsible buyer or responsible tenant or
of any entity formed to acquire the assets thereof and may
compromise or reduce the amount of any indebtedness owing to it
as a part of any such reorganization.
(31) Make or enter into management contracts with a second
party or parties to operate any electric power project or any gas
transmission project and associated facilities, or other related
energy project, either during construction or permanent operation.
(32) Do all acts necessary and proper to carry out the powers
expressly granted to the authority in this article.
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34) The authority shall, after consultation with other
agencies of state government having environmental regulatory
functions, promulgate legislative rules pursuant to chapter twenty-nine-a of this code, to establish standards and principles
to be applied to all projects in assessing the effects of projects
on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the
National Environmental Policy Act of 1969, a copy of the
environmental impact statement shall be filed with the authority
and be made available prior to any final decision or final
approval of any project and prior to the conducting of any public
hearings regarding the project, and in any such case, no
assessment pursuant to the legislative rule need be made.
(35) The power and authority granted to the public energy
authority pursuant to this section and section six of this article
to initiate, acquire, construct, finance or issue bonds for
electric power projects and transmission facilities, or to
exercise the power of eminent domain with respect to any project,
shall terminate on the effective date of this section: Provided,
That nothing herein shall be construed to affect the validity of
any act of the public energy authority prior to the effective date
of this section or to impair the rights of bondholders with
respect to bonds or other evidence of indebtedness issued prior
to the effective date of this section. Following the effective
date of this section, the public energy authority may exercise any
power expressly granted pursuant to this section or section six
of this article with respect to any project or facility previously
constructed or acquired, any existing contractual obligations, and
any outstanding bonded indebtedness.
§5D-1-24. Continuation of board.
The West Virginia public energy authority board shall
continue to exist, pursuant to the provisions of article ten,
chapter four of this code, until the first day of July, two
thousand ten, unless sooner terminated, continued or reestablished
pursuant to the provisions of that article.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments created; offices of secretary
created.
(a) There are created, within the executive branch of the
state government, the following departments:
(1) Department of administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health and human resources;
(5) Department of military affairs and public safety;
(6) Department of tax and revenue; and
(7) Department of transportation; and
(8) Department of commerce.
(b) Each department will be headed by a secretary appointed
by the governor with the advice and consent of the Senate. Each
secretary serves at the will and pleasure of the governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for
in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for
in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen of this code and
article six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for
in article twenty-three,
chapter twenty-nine of this code;
(8) Public defender services provided for
in article
twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for
in article six,
chapter twenty-nine of this code;
(10) The West Virginia ethics commission provided for
in
article two, chapter six-b of this code; and
(11) Consolidated public retirement board provided for
in
article ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are abolished. For
purposes of administrative support and liaison with the office of
the governor, the following agencies and boards, including all
allied, advisory and affiliated entities, are grouped under two
bureaus and one commission as follows The following agencies and
boards, including all of the allied, advisory, affiliated or
related entities and funds associated with any agency or board,
are transferred to and incorporated in and administered as a part
of the department of commerce:
(1) Bureau of commerce:
(A) Division of labor provided for
in article one, chapter
twenty-one of this code, which includes:
(i) (A) Occupational safety and health review commission
provided for
in article three-a, chapter twenty-one of this code;
and
(ii) (B) Board of manufactured housing construction and
safety provided for
in article nine, chapter twenty-one of this
code;
(B) (2) Office of miners' health, safety and training
provided for
in article one, chapter twenty-two-a of this code. The following boards are transferred to the office of miners'
health, safety and training for purposes of administrative support
and liaison with the office of the governor:
(i) (A) Board of coal mine health and safety and coal mine
safety and technical review committee provided for
in article six,
chapter twenty-two-a of this code;
(ii) (B) Board of miner training, education and certification
provided for
in article seven, chapter twenty-two-a of this code;
and
(iii) (C) Mine inspectors' examining board provided for
in
article nine, chapter twenty-two-a of this code;
(C) (3) The West Virginia development office, provided for
in
article two, chapter five-b of this code, which includes:
(i) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(ii) Tourism the division of tourism and the tourism
commission provided for
in article two, chapter five-b of this
code; and the office of the tourism commissioner;
(D) (4) Division of natural resources and natural resources
commission provided for
in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for
in
article eight, chapter twenty-nine of this code is under the
division of natural resources;
(E) (5) Division of forestry provided for
in article one-a,
chapter nineteen of this code; and
(F) (6) Geological and economic survey provided for
in article two, chapter twenty-nine of this code;.
(c) The economic development authority provided for in
article fifteen, chapter thirty-one of this code is continued as
an independent agency within the executive branch.
(G) (d) The water development authority and board provided
for
in article one, chapter twenty-two-c of this code
is continued
as an independent agency within the executive branch.
(2) (e) Bureau of employment programs provided for
in article
one, chapter twenty-one-a of this code is continued as an
independent agency within the executive branch.
(3) (f) Workers' compensation commission provided for
in
article one, chapter twenty-three of this code is continued as an
independent agency within the executive branch.
(c) (g) Bureau of environment is abolished and the following
agencies and boards, including all allied, advisory and affiliated
entities, are transferred to the department of environmental
protection for purposes of administrative support and liaison with
the office of the governor:
(1) Air quality board provided for
in article two, chapter
twenty-two-b of this code;
(2) Solid waste management board provided for
in article
three, chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board,
provided for
in article three, chapter twenty-two-b of this code;
(4) Surface mine board provided for
in article four, chapter
twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for
in
article seven, chapter twenty-two-c of this code;
(6) Shallow gas well review board provided for
in article
eight, chapter twenty-two-c of this code; and
(7) Oil and gas conservation commission provided for
in
article nine, chapter twenty-two-c of this code.
(d) (h) The
following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
education and the arts:
(1) Library commission provided for
in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for
in
article five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(4) (3) Division of culture and history provided for
in
article one, chapter twenty-nine of this code;
(5)
(4) Division of rehabilitation services provided for
in
section two, article ten-a, chapter eighteen of this code.
(e) (i) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau for public health provided for in article one,
chapter sixteen of this code;
(4) Office of emergency medical services and advisory council
thereto provided for in article four-c, chapter sixteen of this
code;
(5) Health care authority provided for in article
twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty,
chapter twenty-nine of this code; and
(8) The child support enforcement division provided for in
chapter forty-eight of this code.
(f) (j) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(g) (k) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code.;
(9)
The state budget office, formerly known as the budget
section of the finance division, department of administration,
previously provided for in article two, chapter five-a of this
code and now provided for in article two of this chapter;
(10) The municipal bond commission provided for in article
three, chapter thirteen of this code;
(11) The office of tax appeals provided for in article ten-a,
chapter eleven of this code; and
(12) The state athletic commission provided for in article
five-a, chapter twenty-nine of this code.
(h) (l) The following agencies and boards, including all of
the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(i) (m) Except for powers, authority and duties that have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency are not affected by the enactment of this chapter.
(j) (n) Except for powers, authority and duties that have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of the boards are not affected by the
enactment of this chapter and all boards which are appellate
bodies or were otherwise established to be independent
decisionmakers will not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(k) (o) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments means
a division of the appropriate department. Wherever reference is
made to any department transferred to and incorporated in a
department created in section two, article one of this chapter,
the reference means a division of the appropriate department and
any reference to a division of a department so transferred and
incorporated means a section of the appropriate division of the
department.
(l) (p) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer is solely for
purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus
created by the Legislature upon the abolishment of the department
of commerce, labor and environmental resources in the year one
thousand nine hundred ninety-four will be headed by a commissioner
or other statutory officer of an agency within that bureau
Nothing in this section extends the powers of department
secretaries under section two of this article to any person other
than a department secretary and nothing limits or abridges the
statutory powers and duties of statutory commissioners or officers
pursuant to this code.
(m) The amendments to this section effected by the enactment
of Enrolled Senate Bill No. 2013 in the year two thousand three
shall become operative on the first day of October, two thousand
three.
§5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the
contrary, the secretary of each department shall have plenary
power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary
such employees as may be necessary to carry out the functions of
the secretary, which employees shall serve at the will and
pleasure of the secretary;
(2) Cause the various agencies and boards to be operated
effectively, efficiently and economically, and develop goals,
objectives, policies and plans that are necessary or desirable for
the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions
of administrators or positions of board members, and name a person
to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or
duties to or among employees, other than administrators or board
members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the
governor, and transfer within the department funds appropriated
to the various agencies of the department which are not expended
due to cost savings resulting from the implementation of the
provisions of this chapter: Provided, That no more than
twenty-five percent of the funds appropriated to any one agency
or board may be transferred to other agencies or boards within the
department: Provided, however, That no funds may be transferred
from a special revenue account, dedicated account, capital
expenditure account or any other account or funds specifically
exempted by the Legislature from transfer, except that the use of
appropriations from the state road fund transferred to the office
of the secretary of the department of transportation is not a use
other than the purpose for which such funds were dedicated and is
permitted: Provided further, That if the Legislature by
subsequent enactment consolidates agencies, boards or functions,
the secretary may transfer the funds formerly appropriated to such
agency, board or function in order to implement such consolidation. The authority to transfer funds under this section
shall expire on the thirtieth day of June, one thousand nine
hundred eighty-nine two thousand six;
(7) Enter into contracts or agreements requiring the
expenditure of public funds, and authorize the expenditure or
obligating of public funds as authorized by law: Provided, That
the powers granted to the secretary to enter into contracts or
agreements and to make expenditures or obligations of public funds
under this provision shall not exceed or be interpreted as
authority to exceed the powers heretofore granted by the
Legislature to the various commissioners, directors or board
members of the various departments, agencies or boards that
comprise and are incorporated into each secretary's department
under this chapter;
(8) Acquire by lease or purchase property of whatever kind or
character, and convey or dispose of any property of whatever kind
or character as authorized by law: Provided, That the powers
granted to the secretary to lease, purchase, convey or dispose of
such property shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are incorporated
into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make
effective the powers, authority and duties granted and imposed by
the provisions of this chapter, such promulgation to be in
accordance with the provisions of chapter twenty-nine-a of this
code;
(12) Grant or withhold written consent to the proposal of any
rule, as defined in section two, article one, chapter
twenty-nine-a of this code, by any administrator, agency or board
within the department, without which written consent no proposal
of a rule shall have any force or effect;
(13) Delegate to administrators such duties of the secretary
as the secretary may deem appropriate from time to time to
facilitate execution of the powers, authority and duties delegated
to the secretary; and
(14) Take any other action involving or relating to internal
management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall
engage in a comprehensive review of the practices, policies and
operations of the agencies and boards within their departments to
determine the feasibility of cost reductions and increased
efficiency which may be achieved therein, including, but not
limited to, the following:
(1) The elimination, reduction and restrictions in the use of
the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the
preparation of state government publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in
lease agreements between the state and private sector for offices,
equipment and services;
(4) The adoption of appropriate systems for accounting,
including consideration of an accrual basis financial accounting
and reporting system;
(5) The adoption of revised procurement practices to
facilitate cost effective purchasing procedures, including
consideration of means by which domestic businesses may be
assisted to compete for state government purchases; and
(6) The computerization of the functions of the state
agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, none of the powers granted to the secretaries
herein shall be exercised by the secretary if to do so would
violate or be inconsistent with the provisions of any federal law
or regulation, any federal-state program or federally delegated
program or jeopardize the approval, existence or funding of any
such program, and the powers granted to the secretary shall be so
construed.
(d) The layoff and recall rights of employees within the
classified service of the state as provided in subsections five
and six, section ten, article six, chapter twenty-nine of this
code shall be limited to the organizational unit within the agency
or board and within the occupational group established by the classification and compensation plan for the classified service
of the agency or board in which the employee was employed prior
to the agency's or board's transfer or incorporation into the
department: Provided, That the employee shall possess the
qualifications established for the job class. The duration of
recall rights provided in this subsection shall be limited to two
years or the length of tenure, whichever is less. Except as
provided in this subsection, nothing contained in this section
shall be construed to abridge the rights of employees within the
classified service of the state as provided in sections ten and
ten-a, article six, chapter twenty-nine of this code or the right
of classified employees of the board of regents to the procedures
and protections set forth in article twenty-six-b, chapter
eighteen of this code.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 22. COUNTY ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§7-22-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter
five-b of this code;
(2) "County commission" means the governing body of a county
of this state;
(3) (2) "Development expenditures" means payments for
governmental functions, programs, activities, facility
construction, improvements and other goods and services which a district board is authorized to perform or provide under section
five of this article;
(4) (3) "District" means an economic opportunity development
district created pursuant to this article;
(5) (4) "District board" means a district board created
pursuant to section ten of this article; and
(6) (5) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article.
§7-22-6. Notice; hearing.
(a) General. -- A county commission desiring to create an
economic opportunity development district shall conduct a public
hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty
days prior to the scheduled hearing. In addition to the time and
place of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that
may be imposed upon sales of tangible personal property and taxable services from business locations situated within the
proposed district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the county commission shall afford the
opportunity to be heard to any owner of real property situated in
the proposed district and any residents of the county.
(d) Application to council West Virginia development office.
-- If the county commission, following the public hearing,
determines it advisable and in the public interest to establish
an economic opportunity development district, it shall apply to
the council for community and economic development West Virginia
development office for approval of the economic opportunity
development district project pursuant to the procedures provided
in section seven of this article.
§7-22-7. Application to development office for approval of an
economic opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed
with it by county commissions pursuant to section six of this
article. Each application must include:
(1) A true copy of the notice described in section six of
this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements, additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its
inception: Provided, That the amounts of the reserves shall not
exceed the amounts that would be required by ordinary commercial
capital market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the county
commission to the funding of development expenditures;
(8) Identification of any businesses that the county
commission expects to relocate their business locations from the
district to another place in the state in connection with the
establishment of the district or from another place in this state
to the district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the county commission expects to continue doing business there after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain
in the district, for the twelve full calendar months next
preceding the date of the application: Provided, That for
purposes of this article, the aggregate amount is designated as
"the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after
the month in which the tax commissioner would first begin to
collect that tax; and (iii) the estimated amount of economic
opportunity district excise tax that will be collected during the
first thirty-six months after the month in which the tax commissioner would first begin to collect that tax; and
(14) Any additional information the council development
office may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory
and regulatory requirements, the reasonableness of the project's
budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses
economic problems in the area in which the project will be
located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity district excise tax
dollars will leverage or be the catalyst for the effective use of
private, other local government, state or federal funding that is
available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities
in the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity
district is located;
(9) Whether the county commission has a strategy for economic
development in the county and whether the project is consistent
with that strategy;
(10) Whether the project helps to diversify the local
economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the county commission and the project
developer or project team to carry out the project: Provided,
That no project may be approved by the council development office
unless the amount of all development expenditures proposed to be
made in the first twenty-four months following the creation of the
district results in capital investment of more than fifty million
dollars in the district and the county submits clear and
convincing information, to the satisfaction of the council development office, that such investment will be made if the
council development office approves the project and the
Legislature authorizes the county commission to levy an excise tax
on sales of goods and services made within the economic
opportunity district as provided in this article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the
receipt of any additional information requested by the council
development office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a county's economic opportunity district project
application, it he or she shall issue to the county commission a
written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council for
community and economic development office requests from the tax
commissioner and the tax commissioner provides to the council
development office: Provided, That in determining the net annual
district tax revenue amount, the council development office may
not use a base tax revenue amount less than that amount certified
by the tax commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the county
commission pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a county's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the county
commission a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council
development office requests from the tax commissioner and the tax
commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue
amount, the council development office may not use a base tax
revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax
commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the county
commission pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and
economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be
filed with the secretary of state.
§7-22-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account
and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account
for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§7-22-10. Ordinance to create district as approved by
development office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council executive
director of the development office and the levying of a special
district excise tax for the district has been authorized by the
Legislature, all in accordance with this article, the county
commission may create the district by order entered of record as
provided in article one of this chapter: Provided, That the county commission may not amend, alter or change in any manner the
boundaries of the economic opportunity development district
authorized by the Legislature. In addition to all other
requirements, the order shall contain the following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and
capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership, limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all
things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of
this article;
(D) To amend or supplement any contracts or leases or to
enter into new, additional or further contracts or leases upon the
terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the
district board and any person, agency, government entity, agency
or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of
its officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations
and contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or
construction or in any other lawful manner and hold title thereto
in its own name and to sell, lease or otherwise dispose of all or
part of any real property which it may own, either by contract or
at public auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms
as the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to
any entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and
use, in the public interest and for the general welfare of the
people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of
unemployment existing within the state.
(b) Additional contents of order. -- The county commission's
order shall also state the general intention of the county
commission to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of order. -- Upon entry of an
order establishing an economic opportunity development district
excise tax, a certified copy of the order shall be mailed to the
state auditor, as ex officio the chief inspector and supervisor
of public offices, the state treasurer and the tax commissioner.
§7-22-11. District board; duties.
(a) General. -- The county commission of a county that has
been authorized by the Legislature to establish an economic
opportunity development district, in accordance with this article,
shall provide, by order entered of record, for the appointment of
a district board to oversee the operations of the district:
Provided, That the county commission may, by order, in lieu of
appointing a separate district board, designate itself to act as
the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members,
two of which shall be owners, or representatives of owners, of
real property situated in the economic opportunity development
district and the other five shall be residents of the county
within which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the order creating the district, shall submit
an annual report to the county commission and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this
article prohibits any member of the district board from also
serving on the board of directors of a nonprofit corporation with
which the county commission may contract to provide specified
services within the district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services
on the board in the amount determined by the county commission: Provided, That when a district board is not created for the
district but the work of the board is done by the county
commission, the county commissioners shall receive no additional
compensation.
§7-22-12. Special district excise tax authorized.
(a) General. -- The county commission of a county, authorized
by the Legislature to levy a special district excise tax for the
benefit of an economic opportunity development district, may, by
order entered of record, impose that tax on the privilege of
selling tangible personal property and rendering select services
in the district in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base
of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales
and service tax shall also apply to the special district excise
tax and sales of gasoline and special fuel shall not be subject
to special district excise tax but shall remain subject to the tax
levied by said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an order
entered of record by the county commission and equal to the
general rate of tax on each dollar of gross proceeds from sales of tangible personal property and services subject to the tax
levied by section three, article fifteen, chapter eleven of this
code. The tax on fractional parts of a dollar shall be levied and
collected in conformity with the provision of said section.
(d) Collection by tax commissioner. -- The order of the
county commission imposing a special district excise tax shall
provide for the tax to be collected by the tax commissioner in the
same manner as the tax levied by section three, article fifteen,
chapter eleven of this code is administered, assessed, collected
and enforced.
(e) Deposit of net tax collected. --
(1) The order of the county commission imposing a special
district excise tax shall provide that the tax commissioner
deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the county
commission's subaccount therein for the economic opportunity
development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this
article except as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the county
commission's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of
this state, on or before the twentieth day of each calendar month
next following the effective date of a special district excise
tax, a sum equal to one twelfth of the base tax revenue amount
last certified by the council development office pursuant to section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins sixty
days after the date of adoption of an order entered of record
imposing the tax or the first day of any later calendar month
expressly designated in the order.
(g) Copies of order. -- Upon entry of an order levying a
special district excise tax, a certified copy of the order shall
be mailed to the state auditor, as ex officio the chief inspector
and supervisor of public offices, the state treasurer and the tax
commissioner.
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity
development district may not be amended to include additional
contiguous property until after the amendment is approved by the
council executive director of the development office in the same
manner as an application to approve the establishment of the
district is acted upon under section seven of this article and the
amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included
in the district unless it is situated within the boundaries of the
county and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. --
(1) The county commission of any county desiring to amend its order shall designate a time and place for a public hearing upon
the proposal to include additional property. The notice shall
meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
county.
(d) Application to council West Virginia development office.
-- Following the hearing, the county commission may, by
resolution, apply to the council for community and economic
development office to approve inclusion of the additional property
in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and
economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the county commission
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council executive director of the development office approves amending the
boundaries of the district, the Legislature must amend section
nine of this article to allow levy of the special district excise
tax on business located in geographic area to be included in the
district. After the Legislature amends said section, the county
commission may then amend its order: Provided, That the order may
not be effective any earlier than the first day of the calendar
month that begins sixty days after the effective date of the act
of the Legislature authorizing the levy on the special district
excise tax on businesses located in the geographic area to be
added to the boundaries of the district for which the tax is
levied or a later date as set forth in the order of the county
commission.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary
amendment shall on the effective date of the order, determined as
provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the county commission's order or a later date as set forth in
the order.
§7-22-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of
the council for community and economic development executive
director of the development office and of all the holders or obligees of any indebtedness or other instruments the proceeds of
which were applied to any development or redevelopment
expenditures or any indebtedness the payment of which is secured
by revenues payable into the fund provided under section eight of
this article or by any public property, a district may only be
abolished by the county commission when there is no outstanding
indebtedness, the proceeds of which were applied to any
development or redevelopment expenditures or the payment of which
is secured by revenues payable into the fund provided under
section eight of this article, or by any public property, and
following a public hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the
district and shall be published as a Class I-0 legal advertisement
in compliance with article three, chapter fifty-nine of this code
at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the county
commission. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 38. MUNICIPAL ECONOMIC OPPORTUNITY DEVELOPMENT DISTRICTS.
§8-38-3. Definitions.
For purposes of this article, the term:
(1) "Council" means the council for community and economic
development established in section two, article two, chapter
five-b of this code; (2) "Development expenditures" means payments
for governmental functions, programs, activities, facility
construction, improvements and other goods and services which a
district board is authorized to perform or provide under section
five of this article;
(3) (2) "District" means an economic opportunity development
district created pursuant to this article;
(4) (3) "District board" means a district board created
pursuant to section ten of this article;
(5) (4) "Eligible property" means any taxable or exempt real
property located in a district established pursuant to this
article; and
(6) (5) "Municipality" is a word of art and shall mean, for
the purposes of this article, only Class I and Class II cities as classified in section three, article one of this chapter.
§8-38-6. Notice; hearing.
(a) General. -- A municipality desiring to create an economic
opportunity development district shall conduct a public hearing.
(b) Notice of hearing. -- Notice of the public hearing shall
be published as a Class I-0 legal advertisement in compliance with
article three, chapter fifty-nine of this code at least twenty
days prior to the scheduled hearing. In addition to the time and
place of the hearing, the notice must also state:
(1) The purpose of the hearing;
(2) The name of the proposed district;
(3) The general purpose of the proposed district;
(4) The geographic boundaries of the property proposed to be
included in the district; and
(5) The proposed method of financing any costs involved,
including the base and rate of special district excise tax that
may be imposed upon sales of tangible personal property and
taxable services from business locations situated within the
proposed district.
(c) Opportunity to be heard. -- At the time and place set
forth in the notice, the municipality shall afford the opportunity
to be heard to any owner of real property situated in the proposed
district and any residents of the municipality.
(d) Application to council West Virginia development office.
-- If the municipality, following the public hearing, determines
it advisable and in the public interest to establish an economic opportunity development district, it shall apply to the council
for community and economic development West Virginia development
office for approval of the economic opportunity development
district project pursuant to the procedures provided in section
seven of this article.
§8-38-7. Application to development office for community and
economic development for approval of an economic
opportunity development district project.
(a) General. -- The council for community and economic
development office shall receive and act on applications filed
with it by municipalities pursuant to section six of this article.
Each application must include:
(1) A true copy of the notice described in section six of
this article;
(2) The total cost of the project;
(3) A reasonable estimate of the number of months needed to
complete the project;
(4) A general description of the capital improvements,
additional or extended services and other proposed development
expenditures to be made in the district as part of the project;
(5) A description of the proposed method of financing the
development expenditures, together with a description of the
reserves to be established for financing ongoing development or
redevelopment expenditures necessary to permanently maintain the
optimum economic viability of the district following its
inception: Provided, That the amounts of the reserves shall not exceed the amounts that would be required by ordinary commercial
capital market considerations;
(6) A description of the sources and anticipated amounts of
all financing, including, but not limited to, proceeds from the
issuance of any bonds or other instruments, revenues from the
special district excise tax and enhanced revenues from property
taxes and fees;
(7) A description of the financial contribution of the
municipality to the funding of development expenditures;
(8) Identification of any businesses that the municipality
expects to relocate their business locations from the district to
another place in the state in connection with the establishment
of the district or from another place in this state to the
district: Provided, That for purposes of this article, any
entities shall be designated "relocated entities";
(9) Identification of any businesses currently conducting
business in the proposed economic opportunity development district
that the municipality expects to continue doing business there
after the district is created;
(10) A good faith estimate of the aggregate amount of
consumers sales and service tax that was actually remitted to the
tax commissioner by all business locations identified as provided
in subdivisions (8) and (9) of this subsection with respect to
their sales made and services rendered from their then current
business locations that will be relocated from, or to, or remain
in the district, for the twelve full calendar months next preceding the date of the application: Provided, That for
purposes of this article, the aggregate amount is designated as
"the base tax revenue amount";
(11) A good faith estimate of the gross annual district tax
revenue amount;
(12) The proposed application of any surplus from all funding
sources to further the objectives of this article;
(13) The tax commissioner's certification of: (i) The amount
of consumers sales and service taxes collected from businesses
located in the economic opportunity district during the twelve
calendar months preceding the calendar quarter during which the
application will be submitted to the council development office;
(ii) the estimated amount of economic opportunity district excise
tax that will be collected during the first twelve months after
the month in which the tax commissioner would first begin to
collect that tax; and (iii) the estimated amount of economic
opportunity district excise tax that will be collected during the
first thirty-six months after the month in which the tax
commissioner would first begin to collect that tax; and
(14) Any additional information the council development
office may require.
(b) Review of applications. -- The council development office
shall review all project proposals for conformance to statutory
and regulatory requirements, the reasonableness of the project's
budget and timetable for completion, and the following criteria:
(1) The quality of the proposed project and how it addresses economic problems in the area in which the project will be
located;
(2) The merits of the project determined by a cost-benefit
analysis that incorporates all costs and benefits, both public and
private;
(3) Whether the project is supported by significant private
sector investment and substantial credible evidence that, but for
the existence of sales tax increment financing, the project would
not be feasible;
(4) Whether the economic opportunity development district
excise tax dollars will leverage or be the catalyst for the
effective use of private, other local government, state or federal
funding that is available;
(5) Whether there is substantial and credible evidence that
the project is likely to be started and completed in a timely
fashion;
(6) Whether the project will, directly or indirectly, improve
the opportunities in the area where the project will be located
for the successful establishment or expansion of other industrial
or commercial businesses;
(7) Whether the project will, directly or indirectly, assist
in the creation of additional long-term employment opportunities
in the area and the quality of jobs created in all phases of the
project, to include, but not be limited to, wages and benefits;
(8) Whether the project will fulfill a pressing need for the
area, or part of the area, in which the economic opportunity district is located;
(9) Whether the municipality has a strategy for economic
development in the municipality and whether the project is
consistent with that strategy;
(10) Whether the project helps to diversify the local
economy;
(11) Whether the project is consistent with the goals of this
article;
(12) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(13) The ability of the municipality and the project
developer or project team to carry out the project: Provided,
That no project may be approved by the council development office
unless the amount of all development expenditures proposed to be
made in the first twenty-four months following the creation of the
district results in capital investment of more than fifty million
dollars in the district and the municipality submits clear and
convincing information, to the satisfaction of the council
development office, that such investment will be made if the
council development office
approves the project and the
Legislature authorizes the municipality to levy an excise tax on
sales of goods and services made within the economic opportunity
development district as provided in this article.
(c) Additional criteria. -- The council for community and
economic development office may establish other criteria for
consideration when approving the applications.
(d) Action on the application. -- The council for community
and economic development executive director of the development
office shall act to approve or not approve any application within
thirty days following the receipt of the application or the
receipt of any additional information requested by the council
development office, whichever is the later.
(e) Certification of project. -- If the council for community
and economic development executive director of the development
office approves a municipality's economic opportunity district
project application, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated
net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council for community and economic
development office has determined with respect to the district's
application based on any investigation it considers reasonable and
necessary, including
, but not limited to, any relevant information
the council for community and economic development office requests
from the tax commissioner and the tax commissioner provides to the
council development office: Provided, That in determining the net
annual district tax revenue amount, the council development office
may not use a base tax revenue amount less than that amount
certified by the tax commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax revenue
amount, the council development office may use the estimate of the
gross annual district tax revenue amount provided by the
municipality pursuant to subsection (a) of this section.
(f) Certification of enlargement of geographic boundaries of
previously certified district. -- If the council for community and
economic development executive director of the development office
approves a municipality's economic opportunity district project
application to expand the geographic boundaries of a previously
certified district, it he or she shall issue to the municipality
a written certificate evidencing the approval.
The certificate shall expressly state a base tax revenue
amount, the gross annual district tax revenue amount and the
estimated net annual district tax revenue amount which, for
purposes of this article, is the difference between the gross
annual district tax revenue amount and the base tax revenue
amount, all of which the council development office has determined
with respect to the district's application based on any
investigation it considers reasonable and necessary, including,
but not limited to, any relevant information the council
development office requests from the tax commissioner and the tax
commissioner provides to the council development office:
Provided, That in determining the net annual district tax revenue
amount, the council development office may not use a base tax
revenue amount less than that amount certified by the tax
commissioner but, in lieu of confirmation from the tax commissioner of the gross annual district tax revenue amount, the
council development office may use the estimate of the gross
annual district tax revenue amount provided by the municipality
pursuant to subsection (a) of this section.
(g) Promulgation of rules. -- The council for community and
economic development executive director of the development office
may promulgate rules to implement the economic opportunity
development district project application approval process and to
describe the criteria and procedures it has established in
connection therewith. These rules are not subject to the
provisions of chapter twenty-nine-a of this code but shall be
filed with the secretary of state.
§8-38-8. Establishment of the economic opportunity development
district fund.
(a) General. -- There is hereby created a special revenue
account in the state treasury designated the "economic opportunity
development district fund" which is an interest-bearing account
and shall be invested in the manner described in section nine-c,
article six, chapter twelve of this code with the interest income
a proper credit to the fund.
(b) District subaccount. -- A separate and segregated
subaccount within the account shall be established for each
economic opportunity development district that is approved by the
council executive director of the development office. In addition
to the economic opportunity district excise tax levied and
collected as provided in this article, funds paid into the account for the credit of any subaccount may also be derived from the
following sources:
(1) All interest or return on the investment accruing to the
subaccount;
(2) Any gifts, grants, bequests, transfers, appropriations or
donations which are received from any governmental entity or unit
or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which are made for
this purpose.
§8-38-10. Ordinance to create district as approved by
development office and authorized by the Legislature.
(a) General. -- If an economic opportunity development
district project has been approved by the council for community
and economic development executive director of the development
office and the levying of a special district excise tax for the
district has been authorized by the Legislature, all in accordance
with this article, the municipality may create the district by
ordinance entered of record as provided in article one of this
chapter: Provided, That the municipality may not amend, alter or
change in any manner the boundaries of the economic opportunity
development district authorized by the Legislature. In addition
to all other requirements, the ordinance shall contain the
following:
(1) The name of the district and a description of its
boundaries;
(2) A summary of any proposed services to be provided and capital improvements to be made within the district and a
reasonable estimate of any attendant costs;
(3) The base and rate of any special district excise tax that
may be imposed upon sales by businesses for the privilege of
operating within the district, which tax shall be passed on to and
paid by the consumer, and the manner in which the taxes will be
imposed, administered and collected, all of which shall be in
conformity with the requirements of this article; and
(4) The district board members' terms, their method of
appointment and a general description of the district board's
powers and duties, which powers may include the authority:
(A) To make and adopt all necessary bylaws and rules for its
organization and operations not inconsistent with any applicable
laws;
(B) To elect its own officers, to appoint committees and to
employ and fix compensation for personnel necessary for its
operations;
(C) To enter into contracts with any person, agency,
government entity, agency or instrumentality, firm, partnership,
limited partnership, limited liability company or corporation,
including both public and private corporations, and for-profit and
not-for-profit organizations and generally to do any and all
things necessary or convenient for the purpose of promoting,
developing and advancing the purposes described in section two of
this article;
(D) To amend or supplement any contracts or leases or to enter into new, additional or further contracts or leases upon the
terms and conditions for consideration and for any term of
duration, with or without option of renewal, as agreed upon by the
district board and any person, agency, government entity, agency
or instrumentality, firm, partnership, limited partnership,
limited liability company or corporation;
(E) To, unless otherwise provided in, and subject to the
provisions of any contracts or leases to operate, repair, manage,
and maintain buildings and structures and provide adequate
insurance of all types and in connection with the primary use
thereof and incidental thereto to provide services, such as retail
stores and restaurants, and to effectuate incidental purposes,
grant leases, permits, concessions or other authorizations to any
person or persons upon the terms and conditions for consideration
and for the term of duration as agreed upon by the district board
and any person, agency, governmental department, firm or
corporation;
(F) To delegate any authority given to it by law to any of
its officers, committees, agents or employees;
(G) To apply for, receive and use grants-in-aid, donations
and contributions from any source or sources and to accept and use
bequests, devises, gifts and donations from any person, firm or
corporation;
(H) To acquire real property by gift, purchase or
construction or in any other lawful manner and hold title thereto
in its own name and to sell, lease or otherwise dispose of all or part of any real property which it may own, either by contract or
at public auction, upon the approval by the district board;
(I) To purchase or otherwise acquire, own, hold, sell, lease
and dispose of all or part of any personal property which it may
own, either by contract or at public auction;
(J) Pursuant to a determination by the district board that
there exists a continuing need for redevelopment expenditures and
that moneys or funds of the district are necessary therefor, to
borrow money and execute and deliver the district's negotiable
notes and other evidences of indebtedness therefor, on the terms
as the district shall determine, and give security therefor as is
requisite, including, without limitation, a pledge of the
district's rights in its subaccount of the economic opportunity
development district fund;
(K) To acquire (either directly or on behalf of the
municipality) an interest in any entity or entities that own any
real property situate in the district, to contribute capital to
any entity or entities and to exercise the rights of an owner with
respect thereto; and
(L) To expend its funds in the execution of the powers and
authority given in this section, which expenditures, by the means
authorized in this section, are hereby determined and declared as
a matter of legislative finding to be for a public purpose and
use, in the public interest and for the general welfare of the
people of West Virginia, to alleviate and prevent economic
deterioration and to relieve the existing critical condition of unemployment existing within the state.
(b) Additional contents of ordinance. -- The municipality's
ordinance shall also state the general intention of the
municipality to develop and increase services and to make capital
improvements within the district.
(c) Mailing of certified copies of ordinance. -- Upon
enactment of an ordinance establishing an economic opportunity
development district excise tax, a certified copy of the ordinance
shall be mailed to the state auditor, as ex officio the chief
inspector and supervisor of public offices, the state treasurer
and the tax commissioner.
§8-38-11. District board; duties.
(a) General. -- The council of a municipality that has been
authorized by the council for community and economic development
office to establish an economic opportunity development district,
in accordance with this article, shall provide, by ordinance, for
the appointment of a district board to oversee the operations of
the district: Provided, That the municipality may, in the
ordinance, in lieu of appointing a separate district board,
designate itself to act as the district board.
(b) Composition of board. -- If a separate district board is
to be appointed, it shall be made up of at least seven members,
two of which shall be owners, or representatives of owners, of
real property situated in the economic opportunity development
district and the other five shall be residents of the municipality
within which the district is located.
(c) Annual report. -- The district board, in addition to the
duties prescribed by the ordinance creating the district, shall
submit an annual report to the municipality and the council
development office containing:
(1) An itemized statement of its receipts and disbursements
for the preceding fiscal year;
(2) A description of its activities for the preceding fiscal
year;
(3) A recommended program of services to be performed and
capital improvements to be made within the district for the coming
fiscal year; and
(4) A proposed budget to accomplish its objectives.
(d) Conflict of interest exception. -- Nothing in this
article prohibits any member of the district board from also
serving on the board of directors of a nonprofit corporation with
which the municipality may contract to provide specified services
within the district.
(e) Compensation of board members. -- Each member of the
district board may receive reasonable compensation for services
on the board in the amount determined by the municipality:
Provided, That when a district board is not created for the
district but the work of the board is done by the municipality,
the members shall receive no additional compensation.
§8-38-12. Special district excise tax authorized.
(a) General. -- The council of a municipality, authorized by
the Legislature to levy a special district excise tax for the benefit of an economic opportunity development district, may, by
ordinance, impose that tax on the privilege of selling tangible
personal property and rendering select services in the district
in accordance with this section.
(b) Tax base. -- The base of a special district excise tax
imposed pursuant to this section shall be identical to the base
of the consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the district: Provided, That
except for the exemption provided in section nine-f of said
article, all exemptions and exceptions from the consumers sales
and service tax shall also apply to the special district excise
tax and sales of gasoline and special fuel shall not be subject
to special district excise tax but shall remain subject to the tax
levied by said article.
(c) Tax rate. -- The rate of a special district excise tax
levied pursuant to this section shall be stated in an ordinance
enacted by the municipality and equal to the general rate of tax
on each dollar of gross proceeds from sales of tangible personal
property and services subject to the tax levied by section three,
article fifteen, chapter eleven of this code. The tax on
fractional parts of a dollar shall be levied and collected in
conformity with the provision of said section.
(d) Collection by tax commissioner. -- The ordinance of the
municipality imposing a special district excise tax shall provide
for the tax to be collected by the tax commissioner in the same manner as the tax levied by section three, article fifteen,
chapter eleven of this code is administered, assessed, collected
and enforced.
(e) Deposit of net tax collected. --
(1) The ordinance of the municipality imposing a special
district excise tax shall provide that the tax commissioner
deposit the net amount of tax collected in the special economic
opportunity development district fund to the credit of the
municipality's subaccount therein for the economic opportunity
development district and that the money in the subaccount may only
be used to pay for development expenditures as provided in this
article except as provided in subsection (f) of this section.
(2) The state treasurer shall withhold from the
municipality's subaccount in the economic opportunity development
district fund and shall deposit in the general revenue fund of
this state, on or before the twentieth day of each calendar month
next following the effective date of a special district excise
tax, a sum equal to one twelfth of the base tax revenue amount
last certified by the council development office pursuant to
section seven of this article.
(f) Effective date of special district excise tax. -- Any
taxes imposed pursuant to the authority of this section shall be
effective on the first day of the calendar month that begins at
least sixty days after the date of enactment of the ordinance
imposing the tax or at any later date expressly designated in the
ordinance that begins on the first day of a calendar month.
(g) Copies of ordinance. -- Upon enactment of an ordinance
levying a special district excise tax, a certified copy of the
ordinance shall be mailed to the state auditor, as ex officio the
chief inspector and supervisor of public offices, the state
treasurer and the tax commissioner.
§8-38-14. Modification of included area; notice; hearing.
(a) General. -- The ordinance creating an economic
opportunity development district may not be amended to include
additional contiguous property until after the amendment is
approved by the council for community and economic development
executive director of the development office in the same manner
as an application to approve the establishment of the district is
acted upon under section seven of this article.
(b) Limitations. -- Additional property may not be included
in the district unless it is situated within the boundaries of the
municipality and is contiguous to the then current boundaries of
the district.
(c) Public hearing required. --
(1) The council of any municipality desiring to amend its
ordinance shall designate a time and place for a public hearing
upon the proposal to include additional property. The notice
shall meet the requirements set forth in section six of this
article.
(2) At the time and place set forth in the notice, the
municipality shall afford the opportunity to be heard to any
owners of real property either currently included in or proposed to be added to the existing district and to any other residents
of the municipality.
(d) Application to council West Virginia development office.
-- Following the hearing, the municipality may, by resolution,
apply to the council for community and economic development office
to approve inclusion of the additional property in the district.
(e) Consideration by council the executive director of the
development office. -- Before the council for community and
economic development executive director of the development office
approves inclusion of the additional property in the district, the
council development office shall determine the amount of taxes
levied by article fifteen, chapter eleven of this code that were
collected by businesses located in the area the municipality
proposes to add to the district in the same manner as the base
amount of tax was determined when the district was first created.
The state treasurer shall also deposit one twelfth of this
additional tax base amount into the general revenue fund each
month, as provided in section twelve of this article.
(f) Legislative action required. -- After the council for
community and economic development
executive director of the
development office approves amending the boundaries of the
district, the Legislature must amend section nine of this article
to allow levy of the special district excise tax on business
located in geographic area to be included in the district. After
the Legislature amends said section, the municipality may then
amend its ordinance: Provided, That the ordinance may not be effective any earlier than the first day of the calendar month
that begins sixty days after the effective date of the amended
ordinance imposing the levy of the special district excise tax on
businesses located in the geographic area to be added to the
boundaries of the district for which the tax is levied or the
first day of a later calendar month as set forth in the ordinance
of the municipality.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary
amendment shall on the effective date of the ordinance, determined
as provided in subsection (f) of this section, collect the special
district excise tax on all sales on tangible property or services
made from locations in the district on or after the effective date
of the municipality's ordinance or a later date as set forth in
the ordinance.
§8-38-15. Abolishment and dissolution of district; notice;
hearing.
(a) General. -- Except upon the express written consent of
the council for community and economic development executive
director of the development office and of all the holders or
obligees of any indebtedness or other instruments the proceeds of
which were applied to any development or redevelopment
expenditures or any indebtedness, the payment of which is secured
by revenues payable into the fund provided under section eight of
this article or by any public property, a district may only be
abolished by the municipality when there is no outstanding indebtedness the proceeds of which were applied to any development
or redevelopment expenditures or the payment of which is secured
by revenues payable into the fund provided under section eight of
this article, or by any public property, and following a public
hearing upon the proposed abolishment.
(b) Notice of public hearing. -- Notice of the public hearing
required by subsection (a) of this section shall be provided by
first-class mail to all owners of real property within the
district and shall be published as a Class I-0 legal advertisement
in compliance with article three, chapter fifty-nine of this code
at least twenty days prior to the public hearing.
(c) Transfer of district assets and funds. -- Upon the
abolishment of any economic opportunity development district, any
funds or other assets, contractual rights or obligations, claims
against holders of indebtedness or other financial benefits,
liabilities or obligations existing after full payment has been
made on all existing contracts, bonds, notes or other obligations
of the district are transferred to and assumed by the
municipality. Any funds or other assets transferred shall be used
for the benefit of the area included in the district being
abolished.
(d) Reinstatement of district. -- Following abolishment of a
district pursuant to this section, its reinstatement requires
compliance with all requirements and procedures set forth in this
article for the initial development, approval, establishment and
creation of an economic opportunity development district.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment,
term of private members; chairman; quorum.
(a) The jobs investment trust board is continued. The board
is a public body corporate and established to improve and
otherwise promote economic development in this state.
(b) The board consists of thirteen members, five of whom
serve by virtue of their respective positions. These five are the
governor or designee; president of West Virginia university or his
or her designee; the president of Marshall university or his or
her designee; the chancellor of the higher education policy
commission or his or her designee; and the executive director of
the West Virginia housing development fund; and the executive
director of the West Virginia development office.
One member shall
be is appointed by the governor from a list of two names submitted
by the board of directors of the housing development fund. One
member shall be is appointed by the governor from a list of two
names submitted by the commissioner of the division of tourism.
The other six members shall be are appointed from the general
public by the governor. Of the members of the general public
members appointed by the governor, one shall be is an attorney
with experience in finance and investment matters; one shall be
is a certified public accountant; one shall be is a representative
of labor; one shall be is experienced or involved in innovative
business development; and two shall be are present or past executive officers of companies listed on a major stock exchange
or large privately held companies. Provided, That all All
appointments made pursuant to the provisions of this article shall
be are by and with the advice and consent of the Senate.
(c) A vacancy on the board shall be is filled by appointment
by the governor for the unexpired term in the same manner as the
original appointment. Any person A member appointed to fill a
vacancy serves only for the remainder of the unexpired term.
(d) The governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and the governor may declare the office vacant and fill
fills the vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board
from among the members of the board governor or designee serves
as the chair. The board annually elects one of its public members
as vice chair, and appoints a secretary to keep records of its
proceedings who need not be a member of the board.
(f) Seven members of the board are a quorum. No action
Action may not be taken by the board except upon the affirmative
vote of at least a majority of those members present or
participating by any other means as described in subsection (g)
of this section, but in no any event not fewer than six of the
members serving on the board.
(g) Members of the board may participate in a meeting of the
board by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can hear each other. and participating Participation in
a board meeting pursuant to this subsection constitutes presence
in person at the meeting.
(h) The members of the board, including the chairman, may
receive no compensation are not compensated for their services as
members of the board, but are entitled to their receive reasonable
and necessary expenses actually incurred in discharging their
duties under this article in a manner consistent with guidelines
of the travel management office of the department of
administration.
(i) The board shall meet meets on a quarterly basis or more
often if necessary.
(j) The governor shall appoint a member for a four-year term.
Any member whose term has expired serves until his or her a
successor has been is duly appointed and qualified. Any member
is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of
Delegates, to be appointed by the speaker of the House of
Delegates, and one member of the West Virginia Senate, to be
appointed by the president of the Senate, shall serve as advisory
members of the jobs investment trust board and, as advisory
members, shall be are ex officio, nonvoting members.
§12-7-5. Management and control of jobs investment trust vested
in board; officers; liability; authority of executive
director to act on behalf of board; relationship to
higher education institutions.
(a) It is the duty of the board to manage and control the
jobs investment trust. In order to carry out the day-to-day
management and control of the trust and effectuate the purposes
of this article, the board shall appoint an executive director who
is or has been a senior executive of a major financial
institution, brokerage firm, investment firm or similar
institution with extensive experience in capital market
development. The board shall fix the executive director's duties.
The board shall fix the compensation of the executive director and
the compensation shall, at least in part, be incentive based. The
executive director serves at the will and pleasure of the board
With the advice and consent of the Senate, the governor appoints
an executive director of the jobs investment trust who is or has
been a senior executive of a major financial institution,
brokerage firm, investment firm or similar institution with
extensive experience in capital market development.
The director
serves at the governor's will and pleasure and is responsible for
managing and administering the daily functions of the jobs
investment trust and for performing other functions necessary to
the effective operation of the trust. The compensation of the
director is annually fixed by the board.
(b) The board shall elect a secretary annually elects a
secretary to keep a record of the proceedings of the board, who
need not be a member of the board. to keep a record of the
proceedings of the board
(c) The members and officers of the board are not liable personally, either jointly or severally, for any debt or
obligation created by the board.
(d) The acts of the board are solely the acts of its
corporation and are not those of an agent of the state. No A debt
or obligation of the board is not a debt or obligation of the
state.
(e) Upon the affirmative vote of at least a majority of those
members in attendance or participating by such other means as
described in subsection (g), section four of this article in a
meeting of the board, but in no any event not fewer than six of
the members serving on the board, the board may approve any action
to be taken and authorize the executive director for and on behalf
of the board to execute and deliver all instruments, agreements
or other documents that are required or are reasonably necessary
to effectuate the decisions or acts of the board.
(f) The West Virginia housing development fund shall provide
office space and staff support services for the director and the
board shall act as fiscal agent for the board and, as such, shall
provide accounting services for the board, invest all funds as
directed by the board, service all investment activities of the
board and shall make the disbursements of all funds as directed
by the board, for which the West Virginia housing development fund
shall be reasonably compensated as determined by the board.
(g) The board and the executive director shall involve
students and faculty members of state institutions of higher
education in the board's activities in order to enhance the opportunities at the institutions for learning and for
participation in the board's investment activities and in the
economic development of the state, whether in research, financial
analysis, management participation or in such other ways as the
board and the executive director may, in their discretion, find
appropriate.
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT
BOND ACT.
§13-2C-21. Ceiling on issuance of private activity bonds;
establishing procedure for allocation and
disbursements; reservation of funds; limitations;
unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of
the United States Internal Revenue Code of 1986, other than those
described in Section 146(g) of the Internal Revenue Code) issued
pursuant to this article, including bonds issued by the West
Virginia public energy authority pursuant to subsection (11),
section five, article one, chapter five-d of this code or under
article eighteen, chapter thirty-one of this code, during any
calendar year may not exceed the ceiling established by Section
146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i)
That, in an attempt to promote economic revitalization of
distressed urban and rural areas, certain special tax incentives
will be provided for empowerment zones and enterprise communities to be designated from qualifying areas nominated by state and
local governments, all as set forth by Section 1391, et seq., of
the United States Internal Revenue Code; (ii) that qualified
businesses operating in enterprise communities and empowerment
zones will be eligible to finance property and provide other forms
of financial assistance as provided for in Section 1394 of the
United States Internal Revenue Code; and (iii) that it is in the
best interest of this state and its citizens to facilitate the
acquisition, construction and equipping of projects within
designated empowerment zones and enterprise communities by
providing an orderly mechanism for the commitment of the annual
ceiling for private activity bonds for these projects. It is
hereby further determined and declared as a matter of legislative
finding: (i) That the production of bituminous coal in this state
has resulted in coal waste which is stored in areas generally
referred to as gob piles; (ii) that gob piles are unsightly and
have the potential to pollute the environment in this state; (iii)
that the utilization of the materials in gob piles to produce
alternative forms of energy needs to be encouraged; (iv) that
Section 142(a)(6) of the United States Internal Revenue Code of
1986 permits the financing of solid waste disposal facilities
through the issuance of private activity bonds; and (v) that it
is in the best interest of this state and its citizens to
facilitate the construction of facilities for the generation of
power through the utilization of coal waste by providing an
orderly mechanism for the commitment of the annual ceiling for private activity bonds for these projects.
(b) On or before the first day of each calendar year, the
executive director of the development office shall determine the
state ceiling for the year based on the criteria of the United
States Internal Revenue Code. The annual ceiling shall be
allocated among the several issuers of bonds under this article
or under article eighteen, chapter thirty-one of this code as
follows:
(1) For the calendar year two thousand one, fifty million
dollars and for each subsequent calendar year, forty percent of
the state ceiling for that year shall be allocated to the West
Virginia housing development fund for the purpose of issuing
qualified mortgage bonds, qualified mortgage certificates or bonds
for qualified residential rental projects;
(2) The amount remaining after the allocation to the West
Virginia housing development fund described in subdivision (1) of
this subsection shall be retained by the West Virginia development
office and shall be referred to in this section as the "state
allocation";
(3) Thirty-five percent of the state allocation shall be set
aside by the development office to be made available for lessees,
purchasers or owners of proposed projects, hereafter in this
section referred to as "nonexempt projects", which do not qualify
as exempt facilities as defined by United States Internal Revenue
Code. All reservations of private activity bonds for nonexempt
projects shall be approved and awarded by the committee based upon an evaluation of general economic benefit and any rule that the
council for community and economic development office promulgates
pursuant to section three two, article two, chapter five-b of this
code: Provided, That all requests or reservations of funds from
projects described in this subsection are submitted to the
development office on or before the first day of November of each
calendar year: Provided, however, That on the fifteenth day of
November of each calendar year, the uncommitted portion of this
part of the state allocation shall revert to and become part of
the state allocation portion described in subsection (g) of this
section; and
(4) Ten percent of the state allocation shall be made
available for lessees, purchasers or owners of proposed commercial
or industrial projects which qualify as exempt facilities under
Section 1394 of the United States Internal Revenue Code. All
reservations of private activity bonds for the projects shall be
approved and awarded by the committee based upon an evaluation of
general economic benefit and any rule that the council for
community and economic development office promulgates pursuant to
section three two, article two, chapter five-b of this code:
Provided, That all requests for reservations of funds from
projects described in this subsection shall be submitted to the
development office on or before the first day of November of each
calendar year: Provided, however, That on the fifteenth day of
November of each calendar year the uncommitted portion of this
part of the state allocation shall revert to and become part of the state allocation portion described in subsection (g) of this
section.
(c) The remaining fifty-five percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities as defined by Section 142(a) of the United States
Internal Revenue Code. All reservations of private activity bonds
for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and
any rule that the council for community and economic development
office promulgates pursuant to section three two, article two,
chapter five-b of this code: Provided, That no reservation may
be in an amount in excess of fifty percent of this portion of the
state allocation: Provided, however, That all requests for
reservations of funds from projects described in this subsection
shall be submitted to the development office on or before the
first day of November of each calendar year: Provided further,
That on the fifteenth day of November of each calendar year the
uncommitted portion of this part of the state allocation shall
revert to and become part of the state allocation portion
described in subsection (g) of this section.
(d) No reservation may be made for any project until the
governmental body seeking the reservation submits a notice of
reservation of funds as provided in subsection (e) of this
section. The governmental body shall first adopt an inducement
resolution approving the prospective issuance of bonds and setting forth the maximum amount of bonds to be issued. Each governmental
body seeking a reservation of funds following the adoption of the
inducement resolution shall submit a notice of inducement signed
by its clerk, secretary or recorder or other appropriate official
to the development office. The notice shall include information
required by the development office pursuant to any rule of the
council for community and economic development office.
Notwithstanding the foregoing, when a governmental body proposes
to issue bonds for the purpose of: (i) Constructing, acquiring
or equipping a project described in subdivision (3) or (4),
subsection (b) of this section; or (ii) constructing an energy-
producing project which relies, in whole or in part, upon coal
waste as fuel, to the extent the project qualifies as a solid
waste facility under Section 142(a)(6) of the United States
Internal Revenue Code of 1986, the project may be awarded a
reservation of funds from the state allocation available for three
years subsequent to the year in which the notice of reservation
of funds is submitted, at the discretion of the executive director
of the development office: Provided, That no discretionary
reservation may be made for any single project described in this
subsection in an amount in excess of thirty-five percent of the
state allocation available for the year subsequent to the year in
which the request is made.
(e) Currently with or following the submission of its notice
of inducement, the governmental body at any time considered
expedient by it may submit its notice of reservation of funds which shall include the following information:
(1) The date of the notice of reservation of funds;
(2) The identity of the governmental body issuing the bonds;
(3) The date of inducement and the prospective date of
issuance;
(4) The name of the entity for which the bonds are to be
issued;
(5) The amount of the bond issue or, if the amount of the
bond issue for which a reservation of funds has been made has been
increased, the amount of the increase;
(6) The type of issue; and
(7) A description of the project for which the bonds are to
be issued.
(f) The development office shall accept the notice of
reservation of funds no earlier than the first calendar workday
of the year for which a reservation of funds is sought: Provided,
That a notice of reservation of funds with respect to a project
described in subdivision (4), subsection (b) of this section or
an energy-producing project that is eligible for a reservation of
funds for a year subsequent to the year in which the notice of
reservation of funds is submitted may contain an application for
funds from a subsequent year's state allocation. Upon receipt of
the notice of reservation of funds, the development office shall
immediately note upon the face of the notice the date and time of
reception.
(g) If the bond issue for which a reservation has been made has not been finally closed within one hundred twenty days of the
date of the reservation to be made by the committee, or the
thirty-first of December following the date of reservation if
sooner and a statement of bond closure which has been executed by
the clerk, secretary, recorder or other appropriate official of
the governmental body reserving the bond issue has not been
received by the development office within that time, then the
reservation shall expire and be considered to have been forfeited
and the funds reserved shall be released and revert to the portion
of the state allocation from which the funds were originally
reserved and shall then be made available for other qualified
issues in accordance with this section and the Internal Revenue
Code: Provided, That as to any reservation for a nonexempt
project or any reservation for a project described in subdivision
(4), subsection (b) of this section that is forfeited on or after
the first day of November in any calendar year, the reservation
shall revert to the state allocation for allocation by the
industrial revenue bond allocation review committee: Provided,
however, That as to any notice of reservation of funds received
by the development office during the month of December in any
calendar year with respect to any project qualifying as an
elective carry forward pursuant to Section 146(f)(5) of the
Internal Revenue Code, the notice of reservation of funds and the
reservation to which the notice relates may not expire or be
subject to forfeiture: Provided further, That any unused state
ceiling as of the thirty-first day of December in any year not otherwise subject to a carry forward pursuant to Section 146(f)
of the Internal Revenue Code shall be allocated to the West
Virginia housing development fund which shall be considered to
have elected to carry forward the unused state ceiling for the
purpose of issuing qualified mortgage bonds, qualified mortgage
credit certificates or bonds for qualified residential rental
projects, each as defined in the Internal Revenue Code. All
requests for subsequent reservation of funds upon loss of a
reservation pursuant to this section shall be treated in the same
manner as a new notice of reservation of funds in accordance with
subsections (d) and (e) of this section.
(h) Once a reservation of funds has been made for a project
described in subdivision (4), subsection (b) of this section,
notwithstanding the language of subsection (g) of this section,
the reservation shall remain fully available with respect to the
project until the first day of October in the year from which the
reservation was made at which time, if the bond issue has not been
finally closed, the reservation shall expire and be considered
forfeited and the funds reserved are released as provided in said
subsection.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-4. Division of highways to administer funds for waste
tire remediation; rules authorized; duties of
commissioner.
(a) The division of highways shall administer all funds made available to the division for remediation of waste tire piles and
for the proper disposal of waste tires removed from waste tire
piles. The commissioner of the division of highways may: (i)
Propose for legislative promulgation in accordance with article
three, chapter twenty-nine-a of this code emergency and
legislative rules necessary to implement the provisions of this
article; and (ii) administer all funds appropriated by the
Legislature to carry out the requirements of this article and any
other funds from whatever source, including, but not limited to,
federal, state or private grants.
(b) The commissioner also has the following powers:
(1) To apply and carry out the provisions of this article and
the rules promulgated under this article.
(2) To investigate, from time to time, the operation and
effect of this article and of the rules promulgated under this
article and to report his or her findings and recommendations to
the Legislature and the governor.
(c) The provisions of articles two-a and four of this chapter
and the policy, rules, practices and procedures under those
articles shall be followed by the commissioner in carrying out the
purposes of this article.
(d) On or before the first day of June, two thousand one, the
commissioner shall determine the location, approximate size and
potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list.
(e) The commissioner may contract with the department of health and human resources or the division of corrections, or
both, to remediate or assist in remediation of waste tire piles
throughout the state. Use of available department of health and
human resources and the division of corrections work programs
shall be given priority status in the contract process so long as
such programs prove a cost-effective method of remediating waste
tire piles.
(f) Waste tire remediation shall be stopped and the
department of environmental protection notified upon the discovery
of any potentially hazardous material at a remediation site. The
department of environmental protection shall respond to the
notification in accordance with the provisions of article
eighteen, chapter twenty-two of this code.
(g) The commissioner may establish a tire disposal program
within the division to provide for a cost-effective and efficient
method to accept passenger car and light truck waste tires at such
division of highways' county headquarters as have sufficient space
for temporary storage of waste tires and personnel to accept and
handle waste tires. The commissioner may pay a fee for each tire
an individual West Virginia resident or West Virginia business
brings to the division. The commissioner may establish a limit
on the number of tires an individual or business may be paid for
during any calendar month. The commissioner may in his or her
discretion authorize commercial businesses to participate in the
collection program: Provided, That no person or business who has
a waste tire pile subject to remediation under this article may participate in this program.
(h) The commissioner may pledge not more than two and
one-half million dollars annually of the moneys appropriated,
deposited or accrued in the A. James Manchin fund created by
section six of this article to the payment of debt service,
including the funding of reasonable reserves, on bonds issued by
the water development authority pursuant to section seventeen-a,
article fifteen-a, chapter thirty-one of this code to finance
infrastructure projects relating to waste tire processing
facilities located in this state: Provided, That a waste tire
processing facility shall be determined by the solid waste
management board, established pursuant to the provisions of
article three, chapter twenty-two-c of this code, to meet all
applicable federal and state environmental laws and rules and
regulations and to aid the state in efforts to promote and
encourage recycling and use of constituent component parts of
waste tires in an environmentally sound manner: Provided,
however, That the waste tire processing facility shall have a
capital cost of not less than three hundred million dollars, and
the council for community and economic West Virginia development
office shall determine that the waste tire processing facility is
a viable economic development project of benefit to the state's
economy.
CHAPTER 18. EDUCATION.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-1. School building authority; powers.
(a) The school building authority shall consist consists of
ten persons, eleven members, including the governor or designee;
of whom one shall be the state superintendent of schools, ex
officio; three shall be members of the state board of education,
elected by the state board; and six shall be citizens of the
state, appointed by the governor, by and with the advice and
consent of the Senate, who are knowledgeable in matters relevant
to the issues addressed by the authority, one of whom shall be is
representative of the interests of the construction trades.
The citizen appointments shall be made as soon as possible
after the effective date of this section, and no two citizen
appointees shall be residents within the same region. Two of the
initial appointments shall be for two-year terms, and two shall
be for four-year terms, with all successive appointments being for
four-year terms. Until such appointments take effect, the state
board as constituted under the provisions of section one, article
two of this chapter may act as the authority with such power as
was granted them under the prior enactment of this section.
(b) Citizen members are appointed for three-year terms, which
are staggered in accordance with the initial appointments under
prior enactment of this section. State board of education members
are elected for three-year terms and may not be elected to serve
additional consecutive terms or portions thereof.
(c) The governor or designee serves as chair. The authority
shall annually elect one of its public members as vice chair and
shall appoint a secretary, who need not be a member of the authority and who shall keep records of its proceedings.
(d) The governor appoints an executive director of the
authority, with the advice and consent of the Senate, who serves
at the governor's will and pleasure. The director is responsible
for managing and administering the daily functions of the
authority and for performing all other functions necessary to the
effective operation of the authority.
(e) The governor may remove any appointed member for
incompetency, neglect of duty, moral turpitude or malfeasance in
office. If the governor removes a member, the governor shall fill
the vacancy for the remainder of the unexpired term in the same
manner as the original appointment.
(f) The school building authority shall meet at least
quarterly, and the citizen members shall be reimbursed for
reasonable and necessary expenses actually incurred in the
performance of their official duties in a manner consistent with
guidelines of the travel management office of the department of
administration from funds appropriated or otherwise made available
for such purpose upon submission of an itemized statement.
therefor. The state superintendent of schools shall serve as
president of the authority.
(g) The acts performed by the members of the state board of
education in their capacity as members of the school building
authority are solely the acts of the authority.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 3D. WORKFORCE DEVELOPMENT INITIATIVE.
§18B-3D-1. Legislative findings and intent.
(a) The Legislature finds that a recent statewide study of
the workforce training needs of employers throughout the state
provided a clear message from the business community:
(1) The needs of employers are rapidly changing and training
providers must be more responsive or the state economy will
suffer;
(2) Information specific to West Virginia, once again
emphasizes the critical link between education and economic
development that empowering youth and adults with the knowledge
and skills they need to succeed in the competitive work world also
results in a workforce which enables businesses and communities
to prosper;
(3) Although employers are generally satisfied with the
quality of the West Virginia workforce and the study provides
additional support that the measures adopted in the "Jobs Through
Education Act" will bring continued improvement, workforce needs
are not static, critical skill shortages currently exist and the
establishment of a workforce development system that responds more
quickly to the evolving skill requirements of employers is needed.
(b) The Legislature further finds that a study of community
and technical education in West Virginia performed by the national
center for higher education management systems called attention
to problems in providing needed workforce education and found that
there is a need to:
(1) Jump-start development of community and technical college and post-secondary workforce development initiatives;
(2) Provide incentives for existing public post-secondary
providers to respond jointly to both short- and long-term needs
of employers and other clients;
(3) Provide funding for explicit incentives for partnerships
between employers and public post-secondary institutions to
develop comprehensive community and technical college and
workforce development services; and
(4) Allocate funds competitively on the basis of proposals
submitted by providers.
(c) It is further the intent of the Legislature that the
granting of funds under this article will promote the development
of comprehensive community and technical colleges as set forth in
article three-c of this chapter.
(d) It is the intent of the Legislature through the grant of
funds under this article to provide limited seed money to address
some of the specific areas where improvement is needed, including:
(1) Improving employer awareness and access to services
available through the state's education institutions;
(2) Providing designated professionals and resources to
support workforce education through the state's education
institutions;
(3) Assisting with the modernization and procurement of
equipment needed for workforce training programs: Provided, That
any equipment purchased or upgraded with grant funds awarded under
the provisions of this article may not be sold, disposed of or used for purposes other than those specified in the grant without
prior approval of the council development office;
(4) Increasing the capacity of the state's education
institutions to respond rapidly to employer needs for workforce
education, and training on an on-going basis through the
development of a client-focused, visible point of contact for
program development and delivery, service referral and needs
assessment, such as a workforce development center; and
(5) Maximizing the use of available resources for workforce
education and training through partnerships with public
vocational, technical and adult education centers and private
training providers.
(e) It is further the intent of the Legislature that
consideration and partnering opportunities be given to small
businesses on an equal basis with larger businesses for the
purposes of this article and that the seed money will assist
providers in becoming self-sustaining through partnerships with
business and industry which will include cost-sharing initiatives
and fees charged for the use of services.
(f) The Legislature intends that grants of funds made under
the provisions of this article will be competitive among
applicants who meet all of the criteria established in this
article and such other criteria as may be specified by the council
development office. Subject to the availability of funds, more
than one competition may be held during the same fiscal year and
the dollar range of awards granted in successive competitions shall be prorated based on the number of months remaining in the
fiscal year. Subject to annual review and justification, it is
the intent of the Legislature to renew grant awards made under
this article each year for not more than five years following the
initial grant award.
§18B-3D-2. Workforce development initiative program created;
program administration.
(a) For the purposes of this article "Council development
office" means the council for community and economic development
as defined in section two, West Virginia development office
provided in article two, chapter five-b of this code.
(b) There is hereby created under the council development
office a workforce development initiative program to administer
and oversee grants to community and technical colleges to achieve
the purposes of this article in accordance with legislative
intent. The primary responsibility of the council development
office as it relates to the workforce development initiative
program is to administer the state fund for community and
technical college and workforce development, including setting
criteria for grant applications, receiving applications for
grants, making determinations on distribution of funds and
evaluating the performance of workforce development initiatives.
(c) The council executive director of the development office
shall review and approve the expenditure of all grant funds,
including development of application criteria, the review and
selection of applicants for funding and the annual review and justification of applicants for grant renewal.
(1) To aid in decisionmaking, the council shall appoint
executive director of the development office appoints an advisory
committee consisting of the vice chancellor for community and
technical colleges chancellor of the West Virginia council for
community and technical college education; the secretary of
education and the arts or a designee; the assistant state
superintendent for technical and adult education; the chair of the
West Virginia council for community and technical college
education; and the chair of the West Virginia workforce investment
council. The advisory committee shall review all applications for
workforce development initiative grants and make a report
including recommendations for distributing grant funds to the
council executive director of the development office. The
advisory committee also shall make recommendations on methods to
share among the community and technical colleges any curricula
developed as a result of a workforce development initiative grant.
(2) When determining which grant proposals will be funded,
the council executive director of the development office shall
give special consideration to proposals by community and technical
colleges that involve businesses with fewer than fifty employees.
(3) The council executive director of the development office
also shall weigh each proposal to avoid awarding grants which will
have the ultimate effect of providing unfair advantage to
employers new to the state who will be in direct competition with
established local businesses.
(d) The council executive director of the development office
may allocate a reasonable amount, not to exceed five percent up
to a maximum of fifty thousand dollars of the funds available for
grants on an annual basis, for general program administration.
(e) The head of the council executive director of the
development office shall report to the legislative oversight
commission on workforce investment for economic development on the
status of the workforce development initiative program annually
by the first day of December. two thousand four, and annually
thereafter by the first day of December
(f) Moneys appropriated or otherwise available for the
workforce development initiative program shall be allocated by
line item to an appropriate account. Any moneys remaining in the
fund at the close of a fiscal year shall be are carried forward
for use in the next fiscal year.
(g) Nothing in this article requires a specific level of
appropriation by the Legislature.
§18B-3D-3. Mission of the workforce development initiative
program.
(a) The statewide mission of the workforce development
initiative program is to develop a strategy to strengthen the
quality of the state's workforce by linking the existing post-
secondary education capacity to the needs of business, industry
and other employers. Available funding will be used to provide
explicit incentives for partnerships between employers and
community and technical colleges to develop comprehensive workforce development services. Funds will be granted on the
basis of proposals developed according to criteria established by
the council development office.
(b) The mission of any community and technical college
accepting a workforce development initiative grant is to:
(1) Become client-focused and develop programs that meet
documented employer needs;
(2) Involve and collaborate with employers in the development
of programs;
(3) Develop customized training programs that provide for the
changing needs of employers and that are offered at flexible times
and locations to accommodate employer scheduling;
(4) Develop partnerships with other public and private
providers, including small business development centers and
vocational, technical and adult education centers, and with
business and labor, to fulfill the workforce development needs of
the service area;
(5) Establish cooperative arrangements with the public school
system for the seamless progression of students through programs
of study that begin at the secondary level and conclude at the
community and technical college level, particularly with respect
to career and technical education certificates, associate of
applied science and selected associate of science degree programs
for students seeking immediate employment, individual
entrepreneurship skills, occupational development, skill
enhancement and career mobility;
(6) Assist in the on-going assessment of the workforce
development needs of the service area; and
(7) Serve as a visible point of contact and referral for
services to meet the workforce development needs of the service
area.
§18B-3D-4. Grant application procedures.
(a) In order to participate in the workforce development
initiative grant program, a community and technical college must
meet the following conditions:
(1) Establish a consortia committee Participate in a
community and technical college consortia as required by section
seven article three-c of this chapter. The consortia committee
or a subcommittee thereof Consortia representatives shall
participate in the development of and approve applications for
funding grants under the provisions of this article and shall
approve the workforce development initiative budget;
(2) Develop a plan to achieve measurable improvements in the
quality of the workforce within its service area over a five-year
period. The plan must be developed in partnership with employers,
local vocational schools and other workforce education providers;
(3) Establish a special revolving fund under the jurisdiction
of the consortia committee community and technical college
consortia
dedicated solely to workforce development initiatives
for the purposes provided in this article. Any fees or revenues
generated from workforce development initiatives funded by a
competitive grant shall be deposited into this fund.
(b) To be eligible to receive a workforce development
initiative grant, a community and technical college must provide
at least the following information in its application:
(1) Identification of the specific business or business
sector training needs that will be met if a workforce development
initiative grant is received;
(2) A commitment from the private sector to provide a match
of one dollar, cash and in-kind, for each dollar of state grant
money received except in cases where the community and technical
college can demonstrate in the grant application that it would be
a hardship for the business being served to provide such a match.
In those cases only, the match required may be reduced to one
private dollar, cash and in-kind, for every three dollars of state
grant money provided. In the case of awards for the modernization
of procurement of equipment, the council development office may
establish a separate match requirement of up to one dollar, cash
and in-kind, for each dollar of state grant money received;
(3) An agreement to share with other community and technical
colleges any curricula developed using funds from a workforce
development initiative grant;
(4) A specific plan showing how the community and technical
college will collaborate with local post-secondary vocational
institutions to maximize the use of existing facilities, personnel
and equipment;
(5) An acknowledgment that acceptance of a grant under the
provisions of this article commits the community and technical college and its consortia committee to such terms, conditions and
deliverables as is specified by the council development office in
the request for applications, including, but not limited to, the
measures by which the performance of the workforce development
initiative will be evaluated.
(c) Applications submitted by community and technical
colleges may be awarded funds for programs which meet the
requirements of this article that are operated on a collaborative
basis at facilities under the jurisdiction of the public schools
and utilized by both secondary and post-secondary students.
§18B-3D-5. Legislative rules.
The council executive director of the development office
shall propose a legislative rule pursuant to article three-a,
chapter twenty-nine-a of this code to implement the provisions of
this article and shall file the rule with the legislative
oversight commission on education accountability no later than the
first day of September, one thousand nine hundred ninety-nine two
thousand five.
Any rule in effect as of the effective date of the amendment
and reenactment of this section in the year two thousand five will
remain in effect until amended, modified, repealed or replaced.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-4. Water development authority; water development board;
organization of authority and board; appointment of board members; their term of office, compensation
and expenses; director of authority; compensation.
(a) The water development authority is continued. The
authority is a governmental instrumentality of the state and a
body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and
duties are essential governmental functions and for a public
purpose.
(b) The authority is controlled, managed and operated by the
a seven-member board known as the water development board. The
director of the division
governor or designee, the secretary of
the department of environmental protection or designee, and the
commissioner of the bureau for public health and the state officer
or employee who, in the judgment of the governor, is most
responsible for economic or community development or designee are
members ex officio of the board. The governor shall designate
annually the member who is the state officer or employee most
responsible for economic or community development. The other four
members of the board Four members are appointed by the governor,
by and with the advice and consent of the Senate, for six-year
terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. of two, three,
four and six years, respectively. The successor of each such
appointed member shall be appointed for a term of six years in the
same manner the original appointments were made except that any
person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was
appointed shall be appointed only for the remainder of such term.
Each board member serves In the event of a vacancy, appointments
are filled in the same manner as the original appointment for the
remainder of the unexpired term. A member continues to serve
until the appointment and qualification of his or her the
successor. No more More than two of the appointed board members
shall may not at any one time belong to the same political party.
Appointed board members may be reappointed to serve additional
terms.
(c) All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars in the manner provided in article two of said
chapter. The governor may remove any board member for cause as
provided in article six of said chapter.
(d) Annually
the The governor or designee serves as chair.
The board shall elect
annually elects one of its appointed members
as chair and another as vice chair and shall appoint appoints a
secretary-treasurer, who need not be a member of the board. Four
members of the board is a quorum and the affirmative vote of four
members is necessary for any action taken by vote of the board.
No A vacancy in the membership of the board impairs does not
impair the rights of a quorum by such vote to exercise all the
rights and perform all the duties of the board and the authority. The person appointed as secretary-treasurer, including a board
member if he or she is so appointed, shall give bond in the sum
of fifty thousand dollars in the manner provided in article two,
chapter six of this code.
(e) The governor or designee, the secretary of the division
department of environmental protection and the commissioner of the
bureau for public health and the state officer or employee most
responsible for economic or community development shall do not
receive any compensation for serving as board members. Each of
the four appointed members of the board shall receive appointed
member receives an annual salary of twelve thousand dollars,
payable in monthly installments. Each of the seven board members
shall be is reimbursed for all reasonable and necessary expenses
actually incurred in the performance of his or her duties as a
member of the board in a manner consistent with guidelines of the
travel management office of the department of administration.
All
expenses incurred by the board are payable solely from funds of
the authority or from funds appropriated for that purpose by the
Legislature. and no liability Liability or obligation shall be is
not incurred by the authority beyond the extent to which moneys
are available from funds of the authority or from such
appropriations.
(f) There shall also be is a director of the authority
appointed by the board governor, with the advice and consent of
the Senate, who serves at the governor's will and pleasure. The
director is responsible for managing and administering the daily functions of the authority and for performing other functions
necessary to the effective operation of the authority.
The
compensation of the director shall be fixed is fixed annually by
the board.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 8. BLENNERHASSETT ISLAND HISTORICAL STATE PARK
COMMISSION.
§29-8-2. Blennerhassett Island historical state park commission
established; members; terms; meeting; quorum;
compensation; expenses.
(a) There is continued within the bureau of commerce division
of natural resources the Blennerhassett Island historical state
park commission. All assets, real and personal property, debts,
liabilities, duties, powers and authority previously transferred
to the bureau of commerce from the Blennerhassett Island
historical state park commission are continued in the bureau of
commerce are the property of the division of natural resources.
The Blennerhassett Island historical state park commission is
maintained as an advisory commission as hereinafter provided. The
commission is composed of ten members who must be citizens and
residents of this state, appointed by the governor for terms of
four years, by and with the advice and consent of the Senate:
Provided, That the terms of all members previously appointed to
the Blennerhassett Island historical state park commission prior
to any amendment and reenactment of this section shall continue
for the periods originally specified, and no member serving as of the effective date of the amendment and reenactment need be
reappointed.
(b) Each member must be qualified to carry out the functions
of the commission under this article by reason of his or her
special interest, training, education or experience.
No person may be eligible to appointment as a member who is
an officer or member of any political party executive committee
or the holder of any other public office or public employment
under the United States government or the government of this state
or a political subdivision of this state. Not more than six
members may belong to the same political party.
(c) The commission shall elect a chairman from among its
members on the second Monday in September of each year.
(d) All members are eligible for reappointment once by the
governor. A member shall, unless sooner removed, continue to
serve until his or her term expires and his or her successor has
been appointed and has qualified. A vacancy caused by the death,
resignation or removal of a member prior to the expiration of his
or her term shall be filled only for the remainder of term.
(e) For the purpose of carrying out its powers, duties and
responsibilities under this article, six members of the commission
constitute a quorum for the transaction of business. Each member
is entitled to one vote. The commission shall meet at a time and
place designated by the chairman at least four times each fiscal
year. Additional meetings may be held when called by the chairman
or when requested by five members of the commission or by the governor. All meetings shall comply with the provisions of
article nine-a, chapter six of this code. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties under this
article.
(f) The commission shall advise the bureau of commerce
division of natural resources in all matters relating to the
development, establishment and maintenance of the Blennerhassett
Island historical state park.
(g) All employee positions in the former Blennerhassett
Island historical state park commission transferred to the
division of commerce by a previous amendment and reenactment of
this section are continued in the classified service of the civil
service system pursuant to article six of this chapter. Any
person included in the classified service by the provisions of
this section who is employed in any of these positions as of the
effective date of any amendment and reenactment of this section
shall not be required to take and pass qualifying or competitive
examinations upon or as a condition to being added to the
classified service: Provided, That no person included in the
classified service by the provisions of this section who is
employed in any of these positions as of the effective date of any
amendment and reenactment of this section be thereafter severed,
removed or terminated from such employment prior to his or her
entry into the classified service except for cause as if the
person had been in the classified service when severed, removed or terminated.
(i) Notwithstanding any provision of this code to the
contrary, the bureau of commerce division of natural resources is
vested with exclusive regulatory authority over watercraft
transport of visitors to the Blennerhassett Island portion of the
Blennerhassett Island historical state park, and the watercraft
transport of these visitors is not subject to the provisions of
article eighteen, chapter seventeen of this code.
(j) Notwithstanding the provisions of section fifty-eight,
article two, chapter twenty of this code, the natural resources
commission shall promulgate rules pursuant to the provisions of
section seventeen, article one of said chapter and section three,
article one, chapter twenty-nine-a of this code to permit and
regulate the hunting of white-tailed deer at Blennerhassett Island
historical state park.
ARTICLE 22. STATE LOTTERY ACT.
§29-22-18a. State excess lottery revenue fund.
(a) There is continued a special revenue fund within the
state lottery fund in the state treasury which is designated and
known as the "state excess lottery revenue fund". The fund
consists of all appropriations to the fund and all interest earned
from investment of the fund and any gifts, grants or contributions
received by the fund. All revenues received under the provisions
of sections ten-b and ten-c, article twenty-two-a of this chapter
and under article twenty-two-b of this chapter, except the amounts
due the commission under subdivision (1), subsection (a), section one thousand four hundred eight, article twenty-two-b of this
chapter, shall be deposited in the state treasury and placed into
the "state excess lottery revenue fund". The revenue shall be
disbursed in the manner provided in this section for the purposes
stated in this section and shall not be treated by the auditor and
the state treasurer as part of the general revenue of the state.
(b) For the fiscal year beginning the first day of July, two
thousand two, the commission shall deposit: (1) Sixty-five
million dollars into the subaccount of the state excess lottery
revenue fund hereby created in the state treasury to be known as
the "general purpose account" to be expended pursuant to
appropriation of the Legislature; (2) ten million dollars into the
education improvement fund for appropriation by the Legislature
to the "promise scholarship fund" created in section seven,
article seven, chapter eighteen-c of this code; (3) nineteen
million dollars into the economic development project fund created
in subsection (d) of this section for the issuance of revenue
bonds and to be spent in accordance with the provisions of said
subsection; (4) twenty million dollars into the school building
debt service fund created in section six, article nine-d, chapter
eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia infrastructure fund created
in section nine, article fifteen-a, chapter thirty-one of this
code to be spent in accordance with the provisions of said
article; (6) ten million dollars into the higher education
improvement fund for higher education; and (7) five million dollars into the state park improvement fund for park
improvements. For the fiscal year beginning the first day of
July, two thousand three, the commission shall deposit: (1)
Sixty-five million dollars into the general purpose account to be
expended pursuant to appropriation of the Legislature; (2)
seventeen million dollars into the education improvement fund for
appropriation by the Legislature to the "promise scholarship fund"
created in section seven, article seven, chapter eighteen-c of
this code; (3) nineteen million dollars into the economic
development project fund created in subsection (d) of this section
for the issuance of revenue bonds and to be spent in accordance
with the provisions of said subsection; (4) twenty million dollars
into the school building debt service fund created in section six,
article nine-d, chapter eighteen of this code for the issuance of
revenue bonds; (5) forty million dollars into the West Virginia
infrastructure fund created in section nine, article fifteen-a,
chapter thirty-one of this code to be spent in accordance with the
provisions of said article; (6) ten million dollars into the
higher education improvement fund for higher education; and (7)
five million dollars into the state park improvement fund for park
improvements.
(c) For the fiscal year beginning the first day of July, two
thousand four, and subsequent fiscal years, the commission shall
deposit: (1) Sixty-five million dollars into the general purpose
account to be expended pursuant to appropriation of the
Legislature; (2) twenty-seven million dollars into the education improvement fund for appropriation by the Legislature to the
"promise scholarship fund" created in section seven, article
seven, chapter eighteen-c of this code; (3) nineteen million
dollars into the economic development project fund created in
subsection (d) of this section for the issuance of revenue bonds
and to be spent in accordance with the provisions of said
subsection; (4) nineteen million dollars into the school building
debt service fund created in section six, article nine-d, chapter
eighteen of this code for the issuance of revenue bonds; (5) forty
million dollars into the West Virginia infrastructure fund created
in section nine, article fifteen-a, chapter thirty-one of this
code to be spent in accordance with the provisions of said
article; (6) ten million dollars into the higher education
improvement fund for higher education; and (7) five million
dollars into the state park improvement fund for park
improvements. No portion of the distributions made as provided
in this subsection and subsection (b) of this section, except
distributions made in connection with bonds issued under
subsection (d) of this section, may be used to pay debt service
on bonded indebtedness until after the Legislature expressly
authorizes issuance of the bonds and payment of debt service on
the bonds through statutory enactment or the adoption of a
concurrent resolution by both houses of the Legislature. Until
subsequent legislative enactment or adoption of a resolution that
expressly authorizes issuance of the bonds and payment of debt
service on the bonds with funds distributed under this subsection and subsection (b) of this section, except distributions made in
connection with bonds issued under subsection (d) of this section,
the distributions may be used only to fund capital improvements
that are not financed by bonds and only pursuant to appropriation
of the Legislature.
(d) The Legislature finds and declares that in order to
attract new business, commerce and industry to this state, to
retain existing business and industry providing the citizens of
this state with economic security and to advance the business
prosperity of this state and the economic welfare of the citizens
of this state, it is necessary to provide public financial support
for constructing, equipping, improving and maintaining economic
development projects, capital improvement projects and
infrastructure which promote economic development in this state.
(1) The West Virginia economic development authority created
and provided for in article fifteen, chapter thirty-one of this
code shall, by resolution, in accordance with the provisions of
this article and article fifteen, chapter thirty-one of this code,
and upon direction of the governor, issue revenue bonds of the
economic development authority in no more than two series to pay
for all or a portion of the cost of constructing, equipping,
improving or maintaining projects under this section or to refund
the bonds at the discretion of the authority. Any revenue bonds
issued on or after the first day of July, two thousand two, which
are secured by state excess lottery revenue proceeds shall mature
at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and
redemption premium, if any, on, the bonds shall be payable solely
from the special fund provided in this section for the payment.
(2) There is continued in the state treasury a special
revenue fund named the "economic development project fund" into
which shall be deposited on and after the first day of July, two
thousand two, the amounts to be deposited in said fund as
specified in subsections (b) and (c) of this section. The
economic development project fund shall consist of all such
moneys, all appropriations to the fund, all interest earned from
investment of the fund and any gifts, grants or contributions
received by the fund. 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 section, including any and all commercially
customary and reasonable costs and expenses which may be incurred
in connection with the issuance, refunding, redemption or
defeasance thereof. The West Virginia economic development
authority may further provide in the resolution and in the trust
agreement for priorities on the revenues paid into the economic
development project fund as may be necessary for the protection
of the prior rights of the holders of bonds issued at different
times under the provisions of this section. The bonds issued
pursuant to this subsection shall be separate from all other bonds
which may be or have been issued from time to time under the
provisions of this article.
(3) After the West Virginia economic development authority
has issued bonds authorized by this section and after the
requirements of all funds have been satisfied, including any
coverage and reserve funds established in connection with the
bonds issued pursuant to this subsection, any balance remaining
in the economic development project fund may be used for the
redemption of any of the outstanding bonds issued under this
subsection 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 redeemable, and all bonds
redeemed or purchased shall be immediately canceled and shall not
again be issued.
(4) Bonds issued under this subsection shall state on their
face that the bonds do not constitute a debt of the state of West
Virginia; that payment of the bonds, interest and charges thereon
cannot become an obligation of the state of West Virginia; and
that the bondholders' remedies are limited in all respects to the
"special revenue fund" established in this subsection for the
liquidation of the bonds.
(5) The West Virginia economic development authority shall
expend the bond proceeds from the revenue bond issues authorized
and directed by this section for such projects as may be certified
under the provision of this subsection: Provided, That the bond
proceeds shall be expended in accordance with the requirements and
provisions of article five-a, chapter twenty-one of this code and
either article twenty-two or twenty-two-a, chapter five of this code, as the case may be: Provided, however, That if such bond
proceeds are expended pursuant to article twenty-two-a of said
chapter and if the design-build board created under said article
determines that the execution of a design-build contract in
connection with a project is appropriate pursuant to the criteria
set forth in said article and that a competitive bidding process
was used in selecting the design builder and awarding such
contract, such determination shall be conclusive for all purposes
and shall be deemed to satisfy all the requirements of said
article.
(6) For the purpose of certifying the projects that will
receive funds from the bond proceeds, a committee is hereby
established and comprised of the governor, or his or her designee,
the secretary of the department of tax and revenue, the executive
director of the West Virginia development office and six persons
appointed by the governor: Provided, That at least one citizen
member must be from each of the state's three congressional
districts. The committee shall meet as often as necessary and
make certifications from bond proceeds in accordance with this
subsection. The committee shall meet within thirty days of the
effective date of this section.
(7) Applications for grants submitted on or before the first
day of July, two thousand two, shall be considered refiled with
the committee. Within ten days from the effective date of this
section as amended in the year two thousand three, the lead
applicant shall file with the committee any amendments to the original application that may be necessary to properly reflect
changes in facts and circumstances since the application was
originally filed with the committee.
(8) When determining whether or not to certify a project, the
committee shall take into consideration the following:
(A) The ability of the project to leverage other sources of
funding;
(B) Whether funding for the amount requested in the grant
application is or reasonably should be available from commercial
sources;
(C) The ability of the project to create or retain jobs,
considering the number of jobs, the type of jobs, whether benefits
are or will be paid, the type of benefits involved and the
compensation reasonably anticipated to be paid persons filling new
jobs or the compensation currently paid to persons whose jobs
would be retained;
(D) Whether the project will promote economic development in
the region and the type of economic development that will be
promoted;
(E) The type of capital investments to be made with bond
proceeds and the useful life of the capital investments; and
(F) Whether the project is in the best interest of the
public.
(9) No grant may be awarded to an individual or other private
person or entity. Grants may be awarded only to an agency,
instrumentality or political subdivision of this state or to an agency or instrumentality of a political subdivision of this
state.
The project of an individual or private person or entity may be
certified to receive a low-interest loan paid from bond proceeds.
The terms and conditions of the loan, including, but not limited
to, the rate of interest to be paid and the period of the
repayment, shall be determined by the economic development
authority after considering all applicable facts and
circumstances.
(10) Prior to making each certification, the committee shall
conduct at least one public hearing, which may be held outside of
Kanawha County. Notice of the time, place, date and purpose of
the hearing shall be published in at least one newspaper in each
of the three congressional districts at least fourteen days prior
to the date of the public hearing.
(11) The committee may not certify a project unless the
committee finds that the project is in the public interest and the
grant will be used for a public purpose. For purposes of this
subsection, projects in the public interest and for a public
purpose include, but are not limited to:
(A) Sports arenas, fields parks, stadiums and other sports
and sports-related facilities;
(B) Health clinics and other health facilities;
(C) Traditional infrastructure, such as water and wastewater
treatment facilities, pumping facilities and transmission lines;
(D) State-of-the-art telecommunications infrastructure;
(E) Biotechnical incubators, development centers and
facilities;
(F) Industrial parks, including construction of roads, sewer,
water, lighting and other facilities;
(G) Improvements at state parks, such as construction,
expansion or extensive renovation of lodges, cabins, conference
facilities and restaurants;
(H) Railroad bridges, switches and track extension or spurs
on public or private land necessary to retain existing businesses
or attract new businesses;
(I) Recreational facilities, such as amphitheaters, walking
and hiking trails, bike trails, picnic facilities, restrooms, boat
docking and fishing piers, basketball and tennis courts and
baseball, football and soccer fields;
(J) State-owned buildings that are registered on the national
register of historic places;
(K) Retail facilities, including related service, parking and
transportation facilities, appropriate lighting, landscaping and
security systems to revitalize decaying downtown areas; and
(L) Other facilities that promote or enhance economic
development, educational opportunities or tourism opportunities
thereby promoting the general welfare of this state and its
residents.
(12) Prior to the issuance of bonds under this subsection,
the committee shall certify to the economic development authority
a list of those certified projects that will receive funds from the proceeds of the bonds. Once certified, the list may not
thereafter be altered or amended other than by legislative
enactment.
(13) If any proceeds from sale of bonds remain after paying
costs and making grants and loans as provided in this subsection,
the surplus may be deposited in an account created in the state
treasury to be known as the "economic development project bridge
loan fund" to be administered by the council for community and
economic development economic development authority created in
section two, article two fifteen, chapter five-b thirty-one of
this code. Expenditures from the fund are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter five-a of
this code. Loan repayment amounts, including the portion
attributable to interest, shall be paid into the fund created in
this subdivision.
(e) If the commission receives revenues in an amount that is
not sufficient to fully comply with the requirements of
subsections (b), (c) and (h) of this section, the commission shall
first make the distribution to the economic development project
fund; second, make the distribution or distributions to the other
funds from which debt service is to be paid; third, make the
distribution to the education improvement fund for appropriation
by the Legislature to the promise scholarship fund; and fourth, make the distribution to the general purpose account: Provided,
That, subject to the provisions of this subsection, to the extent
such revenues are not pledged in support of revenue bonds which
are or may be issued from time to time under this section, the
revenues shall be distributed on a pro rata basis.
(f) For the fiscal year beginning on the first day of July,
two thousand two, and each fiscal year thereafter, the commission
shall, after meeting the requirements of subsections (b), (c) and
(h) of this section and after transferring to the state lottery
fund created under section eighteen of this article an amount
equal to any transfer from the state lottery fund to the excess
lottery fund pursuant to subsection (f) of said section, deposit
fifty percent of the amount by which annual gross revenue
deposited in the state excess lottery revenue fund exceeds two
hundred twenty-five million dollars in a fiscal year in a separate
account in the state lottery fund to be available for
appropriation by the Legislature.
(g) When bonds are issued for projects under subsection (d)
of this section or for the school building authority,
infrastructure, higher education or park improvement purposes
described in this section that are secured by profits from
lotteries deposited in the state excess lottery revenue fund, the
lottery director shall allocate first to the economic development
project fund an amount equal to one tenth of the projected annual
principal, interest and coverage requirements on any and all
revenue bonds issued, or to be issued, on or after the first day of July, two thousand two, as certified to the lottery director;
and second, to the fund or funds from which debt service is paid
on bonds issued under this section for the school building
authority, infrastructure, higher education and park improvements
an amount equal to one tenth of the projected annual principal,
interest and coverage requirements on any and all revenue bonds
issued, or to be issued, on or after the first day of April, two
thousand two, as certified to the lottery director. In the event
there are insufficient funds available in any month to transfer
the amounts required pursuant to this subsection, the deficiency
shall be added to the amount transferred in the next succeeding
month in which revenues are available to transfer the deficiency.
(h) In fiscal year two thousand four and thereafter, prior to
the distributions provided in subsection (c) of this section, the
lottery commission shall deposit into the general revenue fund
amounts necessary to provide reimbursement for the refundable
credit allowable under section twenty-one, article twenty-one,
chapter eleven of this code.
(i) (1) The Legislature considers the following as priorities
in the expenditure of any surplus revenue funds:
(A) Providing salary and/or increment increases for
professional educators and public employees;
(B) Providing adequate funding for the public employees
insurance agency; and
(C) Providing funding to help address the shortage of
qualified teachers and substitutes in areas of need, both in number of teachers and in subject matter areas.
(2) The provisions of this subsection may not be construed by
any court to require any appropriation or any specific
appropriation or level of funding for the purposes set forth in
this subsection.
(j) The Legislature further directs the governor to focus
resources on the creation of a prescription drug program for
senior citizens by pursuing a medicaid waiver to offer
prescription drug services to senior citizens; by investigating
the establishment of purchasing agreements with other entities to
reduce costs; by providing discount prices or rebate programs for
seniors; by coordinating programs offered by pharmaceutical
manufacturers that provide reduced cost or free drugs; by
coordinating a collaborative effort among all state agencies to
ensure the most efficient and cost effective program possible for
the senior citizens of this state; and by working closely with the
state's congressional delegation to ensure that a national program
is implemented. The Legislature further directs that the governor
report his progress back to the joint committee on government and
finance on an annual basis beginning in November of the year two
thousand one until a comprehensive program has been fully
implemented.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia infrastructure and jobs development council continued; members of council; staff of
council.
(a) The West Virginia infrastructure and jobs development
council is hereby continued. The council is a governmental
instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its
purpose and duties shall be considered and held to be, and are
hereby determined to be, essential governmental functions and for
a public purpose.
(b) The council shall consist of eleven members, including
the governor or designee, the executive director of the housing
development fund or his or her designee, the director of the
department of environmental protection or his or her designee, the
director of the economic development authority or his or her
designee, the director of the water development authority or his
or her designee, the executive director of the state development
office or his or her designee, the director of the division of
health or his or her designee, the chairman of the public service
commission or his or her designee and four members representing
the general public: Provided, That there shall be at least one
member representing the general public from each congressional
district: Provided, however, That after the expiration of the
term of office of the members first appointed as representatives
of the general public, no more than one member representing the
general public may be a resident of the same county. The governor
shall appoint the public members of the council who shall serve three-year staggered terms. The commissioner of the division of
highways, the executive director of the state rail authority, two
members of the West Virginia Senate, two members of the West
Virginia House of Delegates, one representative of the board of
directors of the state college system and one representative of
the board of trustees of the university of West Virginia shall the
chancellor of the higher education policy commission and the
chancellor of the West Virginia council for community and
technical college education serve as advisory members of the
council. The governor shall appoint the legislative members of
the council: Provided further, That no more than three of the
legislative members may be of the same political party. The
governor shall appoint the representatives of the governing boards
from a list of three names submitted by each governing board. The
advisory members shall be ex officio, nonvoting members of the
council.
(c) The council shall annually elect one of its members
governor or designee shall serve as chairman, and the council
shall annually appoint a vice chairperson and shall appoint a
secretary, who need not be a member of the council and who shall
keep records of its proceedings. Six members of the council shall
constitute a quorum and the affirmative vote of at least the
majority of those members present shall be necessary for any
action taken by vote of the council. No A vacancy in the
membership of the council impairs does not impair the rights of
a quorum by such vote to exercise all the rights and perform all the duties of the council.
(d) No A member of the council who serves by virtue of his or
her office shall receive any does not receive compensation or
reimbursement of expenses for serving as a member. The public
members of the council who represent the general public shall
receive reimbursement are reimbursed for actual expenses incurred
in the service of the council in a manner consistent with
guidelines of the travel management office of the department of
administration.
(e) The council shall meet meets at least monthly to review
projects and infrastructure projects requesting funding assistance
and otherwise to conduct its business and shall may meet more
frequently if necessary. Notwithstanding any other provision of
this article to the contrary, the economic development authority
shall not be is not subject to council review with regard to any
action taken pursuant to the authority established in article
fifteen of this chapter. nor shall the The governor's civil
contingent fund be is not subject to council review with regard
to projects or infrastructure projects funded through the
governor's civil contingent fund.
(f) The water development authority shall provide office
space for the council, and each governmental agency represented
on the council shall provide staff support for the council in the
manner determined appropriate by the council. from time to time
(g) The council shall invite to all its meetings each meeting
one or more representatives of the United States department of agriculture, rural economic community development, the United
States economic development agency and the United States army
corps of engineers or any successors thereto. The council shall
also invite such other appropriate parties as may be is necessary
to effectuate the purposes of this article.
§31-15A-11. Reservation of funds for projects and infrastructure
projects.
Eighty percent of the funds deposited in the West Virginia
infrastructure fund shall be dedicated for the purpose of
providing funding for the cost of projects as defined in
subsection (n), section two of this article. Twenty percent of
the funds deposited in the West Virginia infrastructure fund shall
be dedicated for the purpose of providing funding for costs of
infrastructure projects as defined in subsection (l), section two
of this article. Project sponsors of infrastructure projects
shall follow the application process as established by this
article: Provided, That notwithstanding any provision of this
article to the contrary, all applications for any infrastructure
project shall be submitted to the council for community and
economic development, or its successor, executive director of the
West Virginia development office for review, recommendation and
approval regarding infrastructure project funding.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-4. Composition; board of directors; appointment, term,
etc., of private members; chairman and vice
chairman; quorum.
(a) There is continued as a governmental instrumentality of
the state of West Virginia a public body corporate to be known as
the West Virginia housing development fund.
(b) The housing development fund is created and established
to serve a public corporate purpose and to act for the public
benefit and as a governmental instrumentality of the state of West
Virginia, to act on behalf of the state and its people in
improving and otherwise promoting their health, welfare and
prosperity.
(c) The housing development fund shall be governed by a board
of directors, consisting of eleven members, four of whom shall be
the governor, the attorney general, the commissioner of
agriculture and the state treasurer, or their designated
representatives as public directors, and seven of whom shall be
chosen from the general public residing in the state as private
directors. No more than four of the private directors shall be
from the same political party.
(d) Upon organization of the housing development fund, the
governor shall appoint, by and with the advice and consent of the
Senate, the seven private directors to take office and to exercise
all powers thereof immediately, with two each appointed for terms
of two years and three years and with three each appointed for
terms of four years, respectively, as the governor shall
designate; at the expiration of said terms and for all succeeding
terms, the governor shall appoint a successor to the office of
private director for a term of four years in each case.
(e) In cases of any A vacancy in the office of a private
director such vacancy shall be is filled by appointment by the
governor for the remainder of the unexpired term.
(f) The governor may remove any private director whom he may
appoint in case for reason of incompetency, neglect of duty, gross
immorality or malfeasance in office, and he may declare his office
vacant and may appoint a person for such appoint a director to
fill the vacancy as provided in other cases of vacancy.
(g) The chairman and vice chairman, of the board of directors
shall be designated by the governor from among the directors
governor or designee serves as chair. The board of directors
shall annually elect one of its public members as vice chair and
appoint a secretary to keep records of its proceedings, who need
not be a member of the board.
(h) Six members of the board of directors shall constitute
constitutes a quorum. No A vacancy in the membership of the board
shall does not impair the right of a quorum to exercise all the
rights and perform all the duties of the board of directors.
(i) No action shall Action may not be taken by the board of
directors except upon the affirmative vote of at least six of the
directors.
(j) The directors, including the chairman, vice chairman and
the chair, vice chair and treasurer, of the board of directors and
the secretary of the board of directors shall receive no
compensation are not compensated for their services but shall be
entitled to their receive reasonable and necessary expenses actually incurred in discharging their duties under this article
in a manner consistent with guidelines of the travel management
office of the department of administration.
§31-18-5. Management and control of housing development fund
vested in board; officers; liability.
(a) The management and control of the housing development
fund shall be vested solely in the board of directors in
accordance with the provisions of this article.
(b) The chairman shall be the chief executive officer of the
housing development fund, and, in his or her absence, the vice
chairman shall act as chief executive officer.
(c) The board of directors may appoint a chief administrative
officer and may fix his title, duties and compensation. governor
appoints an executive director of the housing development fund,
with the advice and consent of the Senate, who serves at the
governor's will and pleasure. The director is responsible for
managing and administering the daily functions of the housing
development fund and for performing other functions necessary to
the effective operation of the housing development fund.
The
executive director's compensation is fixed annually by the board
of directors.
(d) The board of directors of the housing development fund
shall annually elect from its membership a treasurer and shall
annually elect a secretary, who need not be a member of the board,
to keep a record of the proceedings of the housing development
fund.
(e) The treasurer of the housing development fund shall be
custodian of all funds of the housing development fund and shall
be bonded in such amount as the other members of the board of
directors may designate.
(f) The directors and officers of the West Virginia housing
development fund shall not be liable personally, either jointly
or severally, for any debt or obligation created by the West
Virginia housing development fund.;
On pages one and two, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That
the code of West Virginia, 1931
, as amended, be amended
by adding thereto a new
section, designated §
5-1-28; that said
code be amended by adding thereto a new article, designated
§
5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5, §
5B-1-6 and §
5B-1-7
;
that §
5B-2-2, §
5B-2-3 and §
5B-2-8
of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §
5B-2-14;
that §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6 and
§5B-2E-9
of said code be amended and reenacted;
that
§5D-1-4 and §5D-1-5
of said code be amended and reenacted;
that
said code be amended by adding thereto a new section, designated
§
5D-1-24
;
that §5F-1-2 of said code be amended and reenacted; that
§5F-2-1 and §5F-2-2
of said code be amended and reenacted
; that
§
7-22-3, §
7-22-6, §
7-22-7, §
7-22-8, §
7-22-10, §
7-22-11, §
7-22-12,
§
7-22-14 and §
7-22-15 of said code
be amended and reenacted; that
§
8-38-3, §
8-38-6, §
8-38-7, §
8-38-8, §
8-38-10, §
8-38-11, §
8-38-12, §
8-38-14 and §
8-38-15 of said code be amended and reenacted;
that
§
12-7-4 and §
12-7-5
of said code
be amended and reenacted; that
§13-2C-21
of said code be amended and reenacted; that §
17-24-4 of
said code
be amended and reenacted; that §
18-9D-1
of said code be
amended and reenacted;
that §
18B-3D-1, §
18B-3D-2, §
18B-3D-3,
§
18B-3D-4 and 18B-3D-5 of said code
be amended and reenacted; that
§
22C-1-4 of said code be amended and reenacted; that
§29-8-2 of
said code be amended and reenacted;
that
§29-22-18a of said code
be amended and reenacted;
that §31-15A-3
and §
31-15A-11
of said
code be amended and reenacted; that §
31-18-4 and §
31-18-5
of said
code be amended and reenacted
, all to read as follows:
;
And,
On pages one through five, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 1002--A Bill
to amend
the code of West
Virginia, 1931, as amended,
by adding thereto a new section,
designated §5-1-28; to amend said code by adding thereto a new
article, designated
§5B-1-1, §
5B-1-2, §
5B-1-3, §
5B-1-4, §
5B-1-5,
§
5B-1-6 and §
5B-1-7;
to amend and reenact §
5B-2-2, §
5B-2-3 and
§
5B-2-8
of said code; to amend said code by adding thereto a new
section, designated §
5B-2-14;
to amend and reenact §5B-2E-3,
§5B-2E-4,
§5B-2E-5,
§5B-2E-6 and
§5B-2E-9
of said code;
to amend
and reenact §5D-1-4 and §5D-1-5
of said code
; to amend said code
by adding thereto a new section, designated §
5D-1-24
; to amend and
reenact §5F-1-2 of said code; to amend and reenact §5F-2-1 and
§5F-2-2
of said code
; to amend and reenact §
7-22-3, §
7-22-6, §
7-22-7, §
7-22-8, §
7-22-10, §
7-22-11, §
7-22-12, §
7-22-14 and
§
7-22-15 of said code; to amend and reenact §
8-38-3, §
8-38-6,
§
8-38-7, §
8-38-8, §
8-38-10, §
8-38-11, §
8-38-12, §
8-38-14 and
§
8-38-15 of said code;
to amend and reenact §
12-7-4 and §
12-7-5
of said code; to amend and reenact §13-2C-21
of said code
; to
amend and reenact §
17-24-4 of said code; to amend and reenact
§
18-9D-1
of said code; to amend and reenact §
18B-3D-1, §
18B-3D-2,
§18B-3D-3,
§
18B-3D-4 and §
18B-3D-5
of said code;
to amend and
reenact §
22C-1-4 of said code; to amend and reenact §
29-8-2 of
said code;
to amend and reenact §29-22-18a of said code;
to amend
and reenact §31-15A-3
and §
31-15A-11 of said code; to amend and
reenact §
31-18-4 and §
31-18-5
of said code,
all relating to the
reorganization of the executive branch of state government;
establishing prerequisites for bond issuance and refunding;
creating a new department of commerce in the executive branch of
state government; creating the office of secretary as the chief
executive officer of the department of commerce; providing for the
transfer to and incorporation into the department of commerce of
the bureau of commerce and numerous state divisions, agencies and
boards and allied, advisory, affiliated and related entities and
funds; describing the powers, duties and authority of the
secretary, administrators, division heads and employees
of the
department of commerce; providing for annual reports by the
secretary of the department of commerce to the governor; providing
for the delegation of powers and duties for the secretary of the
department of commerce;
extending authority of executive agencies to transfer funds;
providing for interdepartmental communication
of certain confidential information in certain cases; providing
for an appeal in instances relating to the interference of
government by the department of commerce;
establishing the
economic development authority as an independent agency within the
executive branch;
providing for the appointment and duties of the
executive director of the development office;
transferring
authority from the
council for community and economic development
to the development office in certain cases;
transferring rule-
making authority from the
council for community and economic
development to the development office
or its executive director;
transferring the certified development community program to the
economic development office; revising the powers and duties of the
development office;
transferring authority to approve tourism
development projects from the council for community and economic
development to the executive director of the development office;
transferring authority to approve county and municipal economic
opportunity development district projects from the council for
community and economic development to the development office;
authorizing the development office to determine economic viability
of waste tire processing facilities;
transferring authority to
approve disposal of equipment purchased with workforce development
grant funds from council for community and economic development
to development office; transferring authority to administer the
state fund for community and technical college and workforce
development from council for community and economic development to development office;
authorizing executive director of
development office to approve expenditure of grant funds;
authorizing executive director of development office to
appoint
advisory committee to review applications for workforce
development grants; transferring authority to administer economic
development project bridge loan fund from the council for
community and economic development to the economic development
authority;
expiring terms of members of public energy authority
board; reconstituting composition of public energy authority
board; providing for governor to chair the public energy authority
board; restoring authority of public energy authority to initiate,
acquire, construct, finance or issue bonds for electric power
projects and transmission facilities; restoring authority of
public energy authority to
exercise powers of eminent domain;
providing for sunset review of public energy authority;
modifying
membership of the jobs investment trust board; providing for the
composition and appointment of the jobs investment trust fund
board;
providing for governor to chair the jobs investment trust
board
; authorizing the governor to appoint an executive director
of the jobs investment trust board
;
establishing the water
development authority as an independent agency within the
executive branch;
modifying composition of the water development
authority; providing for governor to chair the water development
authority;
authorizing the governor to appoint an executive
director of the water development authority
;
modifying composition
of school building authority; decreasing terms of certain members of school building authority; providing for governor to chair the
school building authority;
authorizing the governor to appoint an
executive director of the school building authority
;
authorizing
governor to remove members of school building authority for cause;
providing for governor to chair the infrastructure and jobs
development council;
providing applications for infrastructure
projects to be submitted to the executive director of the
development office; providing for governor to chair the housing
development fund board
; authorizing the governor to appoint an
executive director of the housing development fund board;
clarifying that the Blennerhassett Island historical state park
is within the division of natural resources; clarifying division
of tourism in West Virginia development office; and making
technical corrections
.
On motion of Senator Chafin, the Senate concurred in the
House of Delegates amendments, as amended.
Engrossed Senate Bill No. 1002, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Sprouse--1.
Absent: Bowman, Facemyer and Fanning--3.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill
(Eng. S. B. No. 1002) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, Weeks,
White, Yoder and Tomblin (Mr. President)--30.
The nays were: Sprouse--1.
Absent: Bowman, Facemyer and Fanning--3.
So, two thirds of all the members elected to the Senate
having voted in the affirmative, the President declared the bill
(Eng. S. B. No. 1002) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the seventh order of business,
consideration thereunder being a message from the House of
Delegates on yesterday, Friday, January 28, 2005, announcing the
amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2005, and
requesting the concurrence of the Senate in the House of Delegates
amendments, as to
Eng. Com. Sub. for Senate Bill No. 1003, Relating generally
to ethical standards of governmental officials and employees.
On motion of Senator Kessler, the following amendments to the
House of Delegates amendments to the bill (as shown in the Senate Journal of yesterday, Friday, January 28, 2005, pages 2 through
59, inclusive) were reported by the Clerk and considered
simultaneously:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§6B-1-3. Definitions.
As used in this chapter, unless the context in which used
clearly requires otherwise:
(a) "Review board" means the probable cause review board
created by section two-a, article two of this chapter.
(b) "Compensation" means money, thing of value or financial
benefit. The term "compensation" does not include reimbursement
for actual reasonable and necessary expenses incurred in the
performance of one's official duties.
(b) (c) "Employee" means any person in the service of another
under any contract of hire, whether express or implied, oral or
written, where the employer or an agent of the employer or a
public official has the right or power to control and direct such
person in the material details of how work is to be performed and
who is not responsible for the making of policy nor for
recommending official action.
(c) (d) "Ethics commission", "commission on ethics" or
"commission" means the West Virginia ethics commission.
(d) (e) "Immediate family", with respect to an individual,
means a spouse residing in the individual's household and with
whom the individual is living as husband and wife, and any dependent child or children, dependent grandchild or grandchildren
and dependent parent or parents.
(e) (f) "Ministerial functions" means actions or functions
performed by an individual under a given state of facts in a
prescribed manner in accordance with a mandate of legal authority,
without regard to, or without the exercise of, such the
individual's own judgment as to the propriety of the action being
taken.
(f) (g) "Person" means an individual, corporation, business
entity, labor union, association, firm, partnership, limited
partnership, committee, club or other organization or group of
persons, irrespective of the denomination given such organization
or group.
(g) (h) "Political contribution" means and has the same
definition as is given that term under the provisions of article
eight, chapter three of this code.
(h) (i) "Public employee" means any full-time or part-time
employee of any state, county or municipal governmental body or
any political subdivision thereof, including county school boards.
(i) (j) "Public official" means any person who is elected or
appointed to any state, county or municipal office or position and
who is responsible for the making of policy or takes official
action which is either ministerial or nonministerial, or both,
with respect to: (i) (1) Contracting for, or procurement of, goods
or services; (ii) (2) administering or monitoring grants or
subsidies; (iii) (3) planning or zoning; (iv) (4) inspecting, licensing, regulating or auditing any person; or (v) (5) any other
activity where the official action has an economic impact of
greater than a de minimis nature on the interest or interests of
any person.
(j) (k) "Respondent" means a person who is the subject of an
investigation by the commission or against whom a complaint has
been filed with the commission.
(k) (l) "Thing of value", "other thing of value" or "anything
of value" means and includes: (i) (1) Money, bank bills or notes,
United States treasury notes, and other bills, bonds or notes
issued by lawful authority and intended to pass and circulate as
money; (ii) (2) goods and chattels; (iii) (3) promissory notes,
bills of exchange, orders, drafts, warrants, checks, bonds given
for the payment of money or the forbearance of money due or owing;
(iv) (4) receipts given for the payment of money or other
property; (v) (5) any right or chose in action; (vi) (6) chattels
real or personal or things which savor of realty and are, at the
time taken, a part of a freehold, whether they are of the
substance or produce thereof or affixed thereto, although there
may be no interval between the severing and the taking away
thereof; (vii) (7) any interest in realty, including, but not
limited to, fee simple estates, life estates, estates for a term
or period of time, joint tenancies, cotenancies, tenancies in
common, partial interests, present or future interests, contingent
or vested interests, beneficial interests, leasehold interests or
any other interest or interests in realty of whatsoever nature; (viii) (8) any promise of employment, present or future; (ix) (9)
donation or gift; (x) (10) rendering of services or the payment
thereof; (xi) (11) any advance or pledge; (xii) (12) a promise of
present or future interest in any business or contract or other
agreement; or (xiii) (13) every other thing or item, whether
tangible or intangible, having economic worth. "Thing of value",
"other thing of value" or "anything of value" shall not include
anything which is de minimis in nature nor a lawful political
contribution reported as required by law.
§6B-1-6. Special revenue account.
All moneys collected pursuant to this chapter, except fines
imposed pursuant to paragraph (D), subdivision (1), subsection
(r), section four, article two of this chapter, shall be deposited
in a special account in the state treasury to be known as the West
Virginia governmental ethics commission fund. Expenditures from
the fund shall be for the purposes set forth in this chapter and
are not authorized from collections but are to be made only in
accordance with appropriation by the Legislature and in accordance
with the provisions of article three, chapter twelve of this code
and upon the fulfillment of the provisions set forth in article
two, chapter five-a of this code: Provided, That for the fiscal
year ending the thirtieth day of June, two thousand five,
expenditures are authorized from collections rather than pursuant
to an appropriation by the Legislature.
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES;
DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC
AGENCIES; CODE OF CONDUCT FOR ADMINISTRATIVE LAW
JUDGES.
§6B-2-1. West Virginia ethics commission created; members;
appointment, term of office and oath; compensation
and reimbursement for expenses; meetings and quorum.
(a) There is hereby created the West Virginia ethics
commission, consisting of twelve members, no more than seven of
whom shall be members of the same political party. The members
of the commission shall be appointed by the governor with the
advice and consent of the Senate. Within thirty days of the
effective date of this section, the governor shall make the
initial appointments to the commission. No person may be
appointed to the commission or continue to serve as a member of
the commission who holds elected or appointed office under the
government of the United States, the state of West Virginia or any
of its political subdivisions, or who is a candidate for any of
or who is a candidate for any of such those offices, who is
employed as a registered lobbyist, or who is otherwise subject to
the provisions of this chapter other than by reason of his or her
appointment to or service on the commission. A member may
contribute to a political campaign, but no member shall hold any
political party office or participate in a campaign relating to
a referendum or other ballot issue.
(b) At least two members of the commission shall have served
as a member of the West Virginia Legislature; at least two members of the commission shall have been employed in a full-time elected
or appointed office in state government; at least one member shall
have served as an elected official in a county or municipal
government or on a county school board; at least one member shall
have been employed full time as a county or municipal officer or
employee; and at least two members shall have served part time as
a member or director of a state, county or municipal board,
commission or public service district; and at least four members
shall be selected from the public at large. No more than four
members of the commission shall reside in the same congressional
district.
(c) Of the initial appointments made to the commission, two
shall be for a term ending one year after the effective date of
this section, two for a term ending two years after the effective
date of this section, two for a term ending three years after the
effective date of this section, three for a term ending four years
after the effective date of this section and three shall be for
terms ending five years after the effective date of this section.
Thereafter, terms of office shall be for five years, each term
ending on the same day of the same month of the year as did the
term which it succeeds. Each member shall hold office from the
date of his or her appointment until the end of the term for which
he or she was appointed or until his or her successor qualifies
for office. When a vacancy occurs as a result of death,
resignation or removal in the membership of this commission, it
shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as
original appointments. No member shall serve more than two
consecutive full or partial terms and no person may be reappointed
to the commission until at least two years have elapsed after the
completion of a second successive term.
(d) Each member of the commission shall take and subscribe to
the oath or affirmation required pursuant to section five, article
IV of the constitution of West Virginia. A member may be removed
by the governor for substantial neglect of duty, gross misconduct
in office or violation of this chapter, after written notice and
opportunity for reply.
(e) The commission shall meet within thirty days of the
initial appointments to the commission at a time and place to be
determined by the governor, who shall designate a member to
preside at that meeting until a chairman is elected. At its first
meeting, the commission shall elect a chairman and such other
officers as are necessary. The commission shall within ninety
days after its first meeting adopt rules for its procedures.
(f) Seven members of the commission shall constitute a
quorum, except that when the commission is sitting as a hearing
board pursuant to section four of this article, then five members
shall constitute a quorum. Except as may be otherwise provided
in this article, a majority of the total membership shall be
necessary to act at all times.
(g) Members of the commission shall receive the same
compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the
citizens legislative compensation commission and authorized by law
for each day or portion thereof engaged in the discharge of
official duties: Provided, That to be eligible for compensation
and expense reimbursement, the member must be in personal
attendance at the meeting in which the duties are performed.
(h) The commission shall appoint an executive director to
assist the commission in carrying out its functions in accordance
with commission rules and regulations and with applicable law.
Said The executive director shall be paid such a salary as may be
fixed by the commission or as otherwise provided by law. The
commission shall appoint and discharge counsel and employees and
shall fix the compensation of employees and prescribe their
duties. Counsel to the commission shall advise the commission on
all legal matters and on the instruction of the commission may
commence such appropriate civil actions as may be appropriate:
Provided, That no counsel shall both advise the commission and act
in a representative capacity in any proceeding.
(i) The commission may delegate authority to the chairman or
executive director to act in the name of the commission between
meetings of the commission, except that the commission shall not
delegate the power to hold hearings and determine violations to
the chairman or executive director.
(j) The chairman shall have the authority to designate
subcommittees of three persons, no more than two of whom may be
members of the same political party. Said subcommittees shall be investigative panels which shall have the powers and duties set
forth hereinafter in this article.
(k) (j) The principal office of the commission shall be in
the seat of government but it or its designated subcommittees may
meet and exercise its power at any other place in the state.
Meetings of the commission shall be public unless: such meetings
or hearings (1) They are required to be private in conformity with
by the provisions of this chapter relating to confidentiality;
except that the commission shall exclude the public from
attendance at or (2) they involve discussions of commission
personnel, planned or ongoing litigation and planned or ongoing
investigations.
(l) (k) Meetings of the commission shall be upon the call of
the chairman chair and shall be conducted by the personal
attendance of the commission members and no meeting shall may be
conducted by telephonic or other electronic conferencing: nor
shall any member be allowed to vote by proxy Provided, That
telephone or other electronic conferencing and voting may are not
be held for the purpose of approving or rejecting any proposed
advisory opinions prepared by the commission, or for voting on
issues involving the administrative functions of the commission.
Meetings permitted when the commission is acting as a hearing
board under section four of this article or when an investigative
panel meets to receive an oral response as authorized under
subsection (d), section four of this article. Members shall be
given notice of meetings held by telephone or other electronic conferencing shall require notice to members in the same manner
as meetings to be personally attended at which the members are
required to attend in person. Telephone or other electronic
conferences shall be electronically recorded and the recordings
shall be made a permanent part of the commission records. Members
shall not be compensated for meetings other than those personally
attended retained by the commission in accordance with its record
retention policy.
§6B-2-2. Same -- General powers and duties.
(a) The commission shall promulgate propose rules and
regulations for promulgation in accordance with the provisions of
chapter twenty-nine-a of this code, to carry out the purposes of
this article within six months of the effective date of this
section. Such rules and regulations shall be legislative rules
subject to legislative rule-making review and subject to the
provisions of the administrative procedures act.
(b) The commission may initiate or receive complaints and
make investigations, as provided in section four of this article,
and upon complaint by an individual of an alleged violation of
this article by a public official or public employee, refer the
complaint to the review board as provided in section two-a of this
article. Any person charged with a violation of this chapter is
entitled to the administrative hearing process contained in
section four of this article.
(c) The commission may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, papers,
records or other evidence needed for the performance of the
commission's duties or exercise of its powers, including its
duties and powers of investigation.
(c) (d) The commission shall, in addition to its other
duties:
(1) Prescribe forms for reports, statements, notices and
other documents required by law;
(2) Prepare and publish manuals and guides explaining the
duties of individuals covered by this law; and giving instructions
and public information materials to facilitate compliance with,
and enforcement of, this act; and
(3) Provide assistance to agencies, officials and employees
in administering the provisions of this act.
(d) (e) The commission may:
(1) Prepare reports and studies to advance the purpose of the
law;
(2) Contract for any services which cannot satisfactorily be
performed by its employees;
(3) Request Require the attorney general to provide legal
advice without charge to the commission, and the attorney general
shall comply with the request;
(4) Employ additional legal counsel; and
(5) Request appropriate agencies of state to provide such any
professional assistance as it the commission may require in the
discharge of its duties: Provided, That the commission shall reimburse any agency providing such assistance other than the
attorney general shall be reimbursed by the West Virginia ethics
commission the cost of such providing assistance; and
(6) Share otherwise confidential documents, materials or
information with appropriate agencies of state government,
provided that the recipient agrees to maintain the confidentiality
and privileged status of the document, material or information.
§6B-2-2a. Probable cause review board.
(a) There is hereby established a probable cause review board
that shall conduct hearings to determine whether there is probable
cause to believe that a violation of the West Virginia
governmental ethics act has occurred and, if so, to refer that
investigation to the ethics commission. The review board is an
autonomous board, not under the direction or control of the ethics
commission. The review board will review complaints received or
initiated by the ethics commission to make a threshold
determination of whether probable cause exists to believe that a
violation of the West Virginia governmental ethics act has
occurred.
(b) The governor, by and with the advice and consent of the
Senate, shall appoint three persons as members of the review
board, each of whom shall be a resident and citizen of the state.
Each member of the review board shall hold office until his
successor has been appointed and qualified. At least one member
of the board must be an attorney licensed by the state of West
Virginia, and no more than two members can belong to the same political party. The members of the review board shall be
appointed for overlapping terms of two years, except that the
original appointments shall be for terms of one, two and three
years, respectively. Any member whose term expires may be
reappointed by the governor. In the event a review board member
is unable to complete his or her term, a governor shall appoint
a person with similar qualification to complete that term. Each
review board member shall receive the same compensation and
expense reimbursement as provided to ethics commission members
pursuant to section one of this article. These and all other
costs incurred by the review board shall be paid from the budget
of the ethics commission.
(d) No person may be appointed to the review board or
continue to serve as a member of the review board who holds
elected or appointed office under the government of the United
States, the state of West Virginia or any of its political
subdivisions, or who is a candidate for any of such offices, or
who is a registered lobbyist, or who is otherwise subject to the
provisions of this chapter other than by reason of his or her
appointment to or service on the review board. A review board
member may contribute to a political campaign, but no member shall
hold any political party office or participate in a campaign
relating to a referendum or other ballot issue.
(e) The ethics commission shall propose, for approval by the
review board, any procedural and interpretative rules governing
the operation of the review board. The commission shall propose these rules pursuant to article three, chapter twenty-nine-a of
the code.
(f) The ethics commission shall provide staffing and a
location for the review board to conduct hearings. The ethics
commission is authorized to employ and assign the necessary
professional and clerical staff to assist the review board in the
performance of its duties, and commission staff shall, as the
commission deems appropriate, also serve as staff to the review
board. All investigations and proceedings of the review board are
deemed confidential as provided in section four of this article,
and members of the review board are bound to the same
confidentiality requirements applicable to the ethics commission
pursuant to this article.
(g) The review board may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations, take
evidence and require by subpoena the production of books, papers,
records or other evidence needed for the performance of the review
board's duties.
(h) Upon decision by the review board that probable cause
exists to believe that a violation of this chapter has occurred,
commission staff shall send notice to the commission members of
the review board's finding. After an ethics complaint has been
submitted to the review board in accordance with section four of
this article, the commission may take no further action until it
receives the review board's probable cause finding.
§6B-2-3a. Complaints.
(a) The commission may commence an investigation, pursuant to
section four of this article, on the filing of a complaint duly
verified by oath or affirmation, by any person.
(b) The commission may order the executive director to
prepare a complaint, upon a majority affirmative vote of its
members, if it receives or discovers credible information which,
if true, would merit an inquiry into whether a violation of this
article has occurred.
(c) (1) No complaint may be accepted or initiated by the
commission against a public official or public employee during the
sixty days before a primary or general election at which the
public official or public employees is a candidate for elective
office.
(2) The commission shall stay any proceedings with regard to
an ethics complaint filed against a public official or public
employee candidate more than sixty days prior to the election:
Provided, Where there has not yet been a probable cause
determination with regard to the allegations in the complaint, the
public official or public employee candidate may waive the
postponement in writing, in which case the commission and the
review board shall process the complaint and provide the candidate
with a probable cause determination at least thirty days prior to
the election.
(3) For purposes of this subsection, any provisions of this
chapter setting time periods for initiating a complaint or for
performing any other action are considered tolled until after the election at which the public official or public employee candidate
stands for elective office.
§6B-2-4. Processing complaints; dismissals; hearings;
disposition; judicial review.
(a) Upon the filing by any person with the commission of a
complaint which is duly verified by oath or affirmation, the
executive director of the commission or his or her designee shall,
within three working days, acknowledge the receipt of the
complaint by first-class mail, unless the complaint was initiated
by the commission or the complainant or his or her representative
personally filed the complaint with the commission and was given
a receipt or other acknowledgment evidencing the filing of the
complaint. No political party or officer, employee or agent of a
political party acting in his or her official capacity may file
a complaint for a violation of this chapter with the commission.
Nothing in this section prohibits a private citizen, acting in
that capacity, from filing a verified complaint with the
commission under this section. Within fourteen days after the
receipt of a complaint, an investigative panel shall be appointed
to investigate the substance of the allegations in the complaint
and to determine whether there is probable cause to believe that
a violation of this chapter has occurred. The commission shall
establish by legislative rule promulgated in accordance with
chapter twenty-nine-a of this code a rotation system for the
selection of commission members to sit on investigative panels
whereby the caseload of commission investigations is distributed among commission members as evenly and randomly as possible. the
executive director shall refer the complaint to the review board
created pursuant to section two-a of this article.
(b) In the case of a filed complaint, Upon the referral of a
complaint by the executive director pursuant to subsection (a) of
this section, the first inquiry of the investigative panel review
board shall be a question as to determine whether or not the
allegations of the complaint, if taken as true, would constitute
a violation of law upon which the commission could properly act
under the provisions of this chapter. If the complaint is
determined by a majority vote of the investigative panel review
board to be insufficient in this regard, the investigative panel
review board shall dismiss the complaint.
(c) After the commission receives a complaint found by the
investigative panel to be Upon a finding by the review board that
the complaint is sufficient, the executive director shall give
notice of a pending investigation by the investigative panel to
the complainant, if any, and to the respondent. The notice of
investigation shall be mailed to the parties and, in the case of
the respondent, shall be mailed as certified mail, return receipt
requested, marked "Addressee only, personal and confidential."
The notice shall describe the conduct of the respondent which is
the basis for an alleged violation of to violate the law, and if
a complaint has been filed a copy of the complaint shall be
appended to the notice mailed to the respondent. Each notice of
investigation shall inform the respondent that the purpose of the investigation is to determine whether probable cause exists to
believe that a violation of law has occurred which may subject the
respondent to administrative sanctions by the commission, criminal
prosecution by the state or civil liability. The notice shall
further inform the respondent that he or she has a right to appear
before the investigative panel review board and that he or she may
respond in writing to the commission within thirty days after the
receipt of the notice, but that no fact or allegation shall be
taken as admitted by a failure or refusal to timely respond.
(d) Within the 45-day period following the mailing of a
notice of investigation, the investigative panel review board
shall proceed to consider: (1) The allegations raised in the
complaint; (2) any timely received written response of the
respondent; and (3) any other competent evidence gathered by or
submitted to the commission which has a proper bearing on the
issue of probable cause. A respondent shall be afforded the
opportunity to may appear before the investigative panel review
board and make an oral response to the complaint. The commission
shall, in promulgating legislative promulgate rules pursuant to
the provisions of subsection (a), section two of this article,
prescribe prescribing the manner in which a respondent may present
his or her oral response to the investigative panel. The
commission may request ask a respondent to disclose specific
amounts received from a source, and request other detailed
information not otherwise required to be set forth in a statement
or report filed under the provisions of this chapter if the information sought is deemed considered to be probative as to the
issues raised by a complaint or an investigation initiated by the
commission. Any information thus received shall be confidential
except as provided by subsection (f) (e) of this section. If the
person so requested asked to provide information fails or refuses
to furnish the information to the commission, the commission may
exercise its subpoena power as provided for elsewhere in this
chapter, and any subpoena issued thereunder by the commission
shall have the same force and effect as a subpoena issued by a
circuit court of this state. and enforcement Enforcement of any
such subpoena may be had upon application to a circuit court of
the county in which the investigative panel review board is
conducting an investigation, through the issuance of a rule or an
attachment against the respondent as in cases of contempt.
(e) (1) All No person who has filed a complaint, provided
information to the commission or has knowledge that the commission
is undertaking an investigation and no commission member or
employee or former member or employee shall disclose:
(A) His or her knowledge that a complaint has been filed or
an investigation has been undertaken;
(B) Any information he or she obtained as a result of having
interacted with the commission in connection with a particular
investigation;
(C) The fact that he or she has filed a complaint, provided
information to or testified before the commission or otherwise
participated in the commission investigation; or
(D) The contents of any investigations, complaints, reports,
records, proceedings and other information received by the
commission and related to complaints made to the commission or
investigations conducted by the commission pursuant to this
section, including the identity of the complainant or respondent,
shall be confidential and shall not be knowingly and improperly
disclosed by any member or former member of the commission or its
staff, except as follows:
(i) Upon Once there has been a finding that probable cause
exists to believe that a respondent has violated the provisions
of this chapter and the respondent has been served by the
commission with a copy of the review board's order and the
statement of charges prepared pursuant to the provisions of
subsection (g) of this section, the complaint and all reports,
records, nonprivileged and nondeliberative material introduced at
any probable cause hearing held pursuant to the complaint are
thereafter not cease to be confidential: Provided, That
confidentiality of such information shall remain in full force and
effect until the respondent has been served by the commission with
a copy of the investigative panel's order finding probable cause
and with the statement of charges prepared pursuant to the
provisions of subsection (g) of this section.
(ii) After a finding of probable cause as aforesaid, any
subsequent hearing held in the matter for the purpose of receiving
evidence or the arguments of the parties or their representatives
shall be open to the public and all reports, records and nondeliberative materials introduced into evidence at such
subsequent the hearing, as well as the commission's orders, are
not confidential.
(iii) The commission may release any information relating to
an investigation at any time if the release has been agreed to in
writing by the respondent.
(iv) The complaint as well as and the identity of the
complainant shall be disclosed to a person named as respondent in
any such complaint filed with the commission immediately upon such
the respondent's request.
(v) Where the commission is otherwise required by the
provisions of this chapter to disclose such information or to
proceed in such a manner that disclosure is necessary and required
to fulfill such those requirements.
(2) If, in a specific case, the commission finds that there
is a reasonable likelihood that the dissemination of information
or opinion in connection with a pending or imminent proceeding
will interfere with a fair hearing or otherwise prejudice the due
administration of justice, the commission shall order that all or
a portion of the information communicated to the commission to
cause an investigation and all allegations of ethical misconduct
or criminal acts contained in a complaint shall be confidential,
and the person providing such the information or filing a
complaint shall be bound to confidentiality until further order
of the commission.
(3) If a complainant knowingly discloses confidential information in violation of this subsection, the commission may
impose the sanctions specified in subsection (r) of this section
and in addition, or in lieu thereof, dismiss the complaint.
(f) If a majority of the members of the investigative panel
review board fail to find probable cause, the proceedings shall
be dismissed by the commission in an order signed by the majority
members of the panel and copies review board. Copies of the order
of dismissal shall be sent to the complainant and served upon the
respondent forthwith. If the investigative panel review board
decides by a majority unanimous vote that there is probable cause
to believe that a violation under this chapter has occurred, the
majority members of the investigative panel review board shall
sign an order directing the commission staff to prepare a
statement of charges, to assign the matter for hearing to the
commission or a hearing examiner as the commission may
subsequently direct. The commission shall then schedule a
hearing, to be held within ninety days after the date of the
order, to determine the truth or falsity of the charges, such
hearing to be held within ninety days after the date of the order.
The commission's review of the evidence presented shall be de
novo. For the purpose of this section, service of process upon
the respondent is obtained at the time the respondent or the
respondent's agent physically receives the process, regardless of
whether the service of process is in person or by certified mail.
(g) At least eighty days prior to the date of the hearing,
the commission shall serve the respondent shall be served by certified mail, return receipt requested, with the statement of
charges and a notice of hearing setting forth the date, time and
place for the hearing. The scheduled hearing may be continued
only upon a showing of good cause by the respondent or under such
other circumstances as the commission shall, by legislative rule,
direct directs.
(h) The commission members who have not served as members of
an investigative panel in a particular case may sit as a hearing
board to adjudicate the case or may permit an assigned hearing
examiner employed by the commission to preside at the taking of
evidence. The commission shall, by legislative rule, establish
the general qualifications for hearing examiners. Such The
legislative rule shall also contain provisions which seek to
ensure that the functions of a hearing examiner will be conducted
in an impartial manner, and shall describe the circumstances and
procedures for disqualification of hearing examiners.
(i) A member of the commission or a hearing examiner
presiding at a hearing may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses
and parties and otherwise take testimony and establish a record;
(2) Rule on offers of proof and receive relevant evidence;
(3) Take depositions or have depositions taken when the ends
of justice may will be served;
(4) Regulate the course of the hearing;
(5) Hold conferences for the settlement or simplification of issues by consent of the parties;
(6) Dispose of procedural requests or similar matters;
(7) Accept stipulated agreements;
(8) Take other action authorized by the ethics commission
consistent with the provisions of this chapter.
(j) With respect to allegations of a violation under this
chapter, the complainant has the burden of proof. The West
Virginia rules of evidence as used to govern governing proceedings
in the courts of this state shall be given like effect in hearings
held before the commission or a hearing examiner. The commission
shall, by legislative rule, regulate the conduct of hearings so
as to provide full procedural due process to a respondent.
Hearings before a hearing examiner shall be recorded
electronically. When requested by either of the parties, the
presiding officer shall make order a transcript, verified by oath
or affirmation, of each hearing held and so recorded. In the
discretion of the commission, a record of the proceedings may be
made by a certified court reporter. Unless otherwise ordered by
the commission, the cost of preparing a transcript shall be paid
by the party requesting the transcript. Upon a showing of
indigency, the commission may provide a transcript without charge.
Within fifteen days following the hearing, either party may submit
to the hearing examiner that party's proposed findings of fact.
The hearing examiner shall thereafter prepare his or her own
proposed findings of fact and make copies of the findings
available to the parties. The hearing examiner shall then submit the entire record to the commission for final decision.
(k) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with all
papers and requests filed in the proceeding, and the proposed
findings of fact of the hearing examiner and the parties,
constitute the exclusive record for decision by the commission
members who have not served as members of the investigative panel,
unless by leave of the commission a party is permitted to submit
additional documentary evidence or take and file depositions or
otherwise exercise discovery.
(l) The commission shall set a time and place for the hearing
of arguments by the complainant and respondent, or their
respective representatives, and shall notify the parties thereof,
and briefs. Briefs may be filed by the parties in accordance with
procedural rules promulgated by the commission. The commission
shall issue a final decision of the commission shall be made by
the commission members who have not served as members of the
investigative panel in writing within forty-five days of the
receipt of the entire record of a hearing held before a hearing
examiner or, in the case of an evidentiary hearing held by the
commission, acting as a hearing board in lieu of a hearing
examiner, within twenty-one days following the close of the
evidence.
(m) A decision on the truth or falsity of the charges against
the respondent and a decision to impose sanctions must be approved
by at least six seven members of the commission who have not served as members of the investigative panel.
(n) Members of the commission shall recuse themselves from a
particular case upon their own motion with the approval of the
commission or for good cause shown upon motion of a party. The
remaining members of the commission shall, by majority vote,
select a temporary member of the commission to replace a recused
member: Provided, That the temporary member selected to replace
a recused member shall be a person of the same status or category,
provided by subsection (b), section one of this article, as the
recused member.
(o) Except for statements made in the course of official
duties to explain commission procedures, no member or employee or
former member or employee of the commission may make any public
or nonpublic comment about any proceeding previously or currently
before the commission. Any member or employee or former member or
employee of the commission who violates this subsection is subject
to the penalties contained in subsection (e), section ten of this
article. In addition, violation of this subsection by a current
member or employee of the commission is grounds for immediate
removal from office or termination of employment.
(o) (p) A complainant may be assisted by a member of the
commission staff assigned by the commission after a determination
of probable cause.
(p) (q) No member employee of the commission staff assigned
to prosecute a complaint may participate in the commission
deliberations or communicate with commission members or the public concerning the merits of a complaint. after being assigned to
prosecute a complaint
(q) (r) (1) If the commission finds by evidence beyond a
reasonable doubt that the facts alleged in the complaint are true
and constitute a material violation of this article, it may impose
one or more of the following sanctions:
(1) (A) Public reprimand;
(2) (B) Cease and desist orders;
(3) (C) Orders of restitution for money, things of value, or
services taken or received in violation of this chapter; or
(4) (D) Fines not to exceed one five thousand dollars per
violation; or
(E) Reimbursement to the commission for the actual costs of
investigating and prosecuting a violation. Any reimbursement
ordered by the commission for its costs under this paragraph shall
be collected by the commission and deposited into the special
revenue account created pursuant to section six, article one of
this chapter.
(2) In addition to imposing such the above-specified
sanctions, the commission may recommend to the appropriate
governmental body that a respondent be terminated from employment
or removed from office.
(3) The commission may institute civil proceedings in the
circuit court of the county wherein in which a violation occurred
for the enforcement of sanctions.
(r) (s) At any stage of the proceedings under this section, the commission may enter into a conciliation agreement with a
respondent if such the agreement is deemed by a majority of the
members of the commission to be in the best interest of the state
and the respondent. Any conciliation agreement must be disclosed
to the public: Provided, That negotiations leading to a
conciliation agreement, as well as information obtained by the
commission during such the negotiations, shall remain confidential
except as may be otherwise set forth in the agreement.
(s) (t) Decisions of the commission involving the issuance of
sanctions may be appealed to the circuit court of Kanawha County,
West Virginia, or to the circuit court of the county where the
violation is alleged to have occurred, only by the respondent and
only upon the grounds set forth in section four, article five,
chapter twenty-nine-a of this code.
(t) (u) (1) In the event the commission finds in favor of the
person complained against, the commission shall order
reimbursement of all actual costs incurred, including, but not
limited to, attorney fees to be paid to the person complained
against by the complainant, if the commission finds that the
complaint was brought or made in bad faith. In addition, the
aggrieved party shall have a cause of action and be entitled to
compensatory damages, punitive damages, costs and attorney fees
for a complaint made or brought in bad faith. Any person who in
good faith files a verified complaint or any person, official or
agency who gives credible information resulting in a formal
complaint filed by commission staff is immune from any civil liability that otherwise might result by reason of such actions.
(2) If the commission determines, by clear and convincing
evidence, that a person filed a complaint or provided information
which resulted in an investigation knowing that the material
statements in the complaint or the investigation request or the
information provided were not true; filed an unsubstantiated
complaint or request for an investigation in reckless disregard
of the truth or falsity of the statements contained therein; or
filed one or more unsubstantiated complaints which constituted
abuse of process, the commission shall:
(A) Order the complainant or informant to reimburse the
respondent for his or her reasonable costs;
(B) Order the complainant or informant to reimburse the
respondent for his or her reasonable attorney fees; and
(C) Order the complainant or informant to reimburse the
commission for the actual costs of its investigation.
In addition, the commission may decline to process any
further complaints brought by the complainant, the initiator of
the investigation or the informant.
(3) The sanctions authorized in this subsection are not
exclusive and do not preclude any other remedies or rights of
action the respondent may have against the complainant or
informant under the law.
(u) (v) (1) If at any stage in the proceedings under this
section, it appears to an investigative panel a review board, a
hearing examiner or the commission that there is credible information or evidence that the respondent may have committed a
criminal violation, may have been committed by a respondent, such
situation the matter shall be brought before referred to the full
commission for its consideration. If, by a vote of two thirds of
the members of the full commission, it is determined that probable
cause exists to believe a criminal violation has occurred, it may
recommend the commission shall refer the matter to the appropriate
county prosecuting attorney having jurisdiction over the case that
for a criminal investigation be commenced and possible
prosecution. Deliberations of the commission with regard to a
recommendation referring a matter for criminal investigation by
a prosecuting attorney shall be private and confidential.
Notwithstanding any other provision of this article, once a
referral for criminal investigation is made under the provisions
of this subsection, the ethics proceedings shall be held in
abeyance until action on the referred matter is concluded. If the
referral of the matter to the prosecuting attorney results in a
criminal conviction of the respondent, the commission may resume
its investigation or prosecution of the ethics violation, but may
not impose a fine as a sanction if a violation is found to have
occurred.
(2) If fewer than two thirds of the full commission
determines determine that a criminal violation has not occurred,
the commission shall remand the matter to the investigative panel,
review board, the hearing examiner or the commission itself as a
hearing board, as the case may be, for further proceedings under this article.
(v) (w) The provisions of this section shall apply to
violations of this chapter occurring after the thirtieth day of
September, one thousand nine hundred eighty-nine, and within one
year before the filing of a complaint under subsection (a) of this
section: or the appointment of an investigative panel by the
commission under subsection (b) of this section. Provided, That
the applicable statute of limitations for violations which occur
on or after the first day of July, two thousand five, is two years
after the date on which the alleged violation occurred.
§6B-2-5. Ethical standards for elected and appointed officials
and public employees.
(a) Persons subject to section. -- The provisions of this
section apply to all elected and appointed public officials and
public employees, whether full or part time, in state, county,
municipal governments and their respective boards, agencies,
departments and commissions and in any other regional or local
governmental agency, including county school boards.
(b) Use of public office for private gain. -- (1) A public
official or public employee may not knowingly and intentionally
use his or her office or the prestige of his or her office for his
or her own private gain or that of another person. Incidental use
of equipment or resources available to a public official or public
employee by virtue of his or her position for personal or business
purposes resulting in de minimis private gain does not constitute
use of public office for private gain under this subsection. The performance of usual and customary duties associated with the
office or position or the advancement of public policy goals or
constituent services, without compensation, does not constitute
the use of prestige of office for private gain.
(2) The Legislature, in enacting this subsection (b),
relating to the use of public office or public employment for
private gain, recognizes that there may be certain public
officials or public employees who bring to their respective
offices or employment their own unique personal prestige which is
based upon their intelligence, education, experience, skills and
abilities or other personal gifts or traits. In many cases, these
persons bring a personal prestige to their office or employment
which inures to the benefit of the state and its citizens. Such
Those persons may, in fact, be sought by the state to serve in
their office or employment because, through their unusual gifts
or traits, they bring stature and recognition to their office or
employment and to the state itself. While the office or
employment held or to be held by such those persons may have its
own inherent prestige, it would be unfair to such those
individuals and against the best interests of the citizens of this
state to deny such those persons the right to hold public office
or to be publicly employed on the grounds that they would, in
addition to the emoluments of their office or employment, be in
a position to benefit financially from the personal prestige which
otherwise inheres to them. Accordingly, the commission is
directed, by legislative rule, to establish categories of such public officials and public employees, identifying them generally
by the office or employment held, and offering persons who fit
within such those categories the opportunity to apply for an
exemption from the application of the provisions of this
subsection. Such exemptions Exemptions may be granted by the
commission, on a case-by-case basis, when it is shown that: (A)
The public office held or the public employment engaged in is not
such that it would ordinarily be available or offered to a
substantial number of the citizens of this state; (B) the office
held or the employment engaged in is such that it normally or
specifically requires a person who possesses personal prestige;
and (C) the person's employment contract or letter of appointment
provides or anticipates that the person will gain financially from
activities which are not a part of his or her office or
employment.
(c) Gifts. -- (1) A public official or public employee may
not solicit any gift unless the solicitation is for a charitable
purpose with no resulting direct pecuniary benefit conferred upon
the official or employee or his or her immediate family:
Provided, That no public official or public employee may solicit
for a charitable purpose any gift from any person who is also an
official or employee of the state and whose position as such is
subordinate to the soliciting official or employee: Provided,
however, That nothing herein shall prohibit a candidate for public
office from soliciting a lawful political contribution. No
official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official
or employee knows or has reason to know:
(A) Is doing or seeking to do business of any kind with his
or her agency;
(B) Is engaged in activities which are regulated or
controlled by his or her agency; or
(C) Has financial interests which may be substantially and
materially affected, in a manner distinguishable from the public
generally, by the performance or nonperformance of his or her
official duties.
(2) Notwithstanding the provisions of subdivision (1) of this
subsection, a person who is a public official or public employee
may accept a gift described in this subdivision, and there shall
be a presumption that the receipt of such gift does not impair the
impartiality and independent judgment of the person. This
presumption may be rebutted only by direct objective evidence that
the gift did impair the impartiality and independent judgment of
the person or that the person knew or had reason to know that the
gift was offered with the intent to impair his or her impartiality
and independent judgment. The provisions of subdivision (1) of
this subsection do not apply to:
(A) Meals and beverages;
(B) Ceremonial gifts or awards which have insignificant
monetary value;
(C) Unsolicited gifts of nominal value or trivial items of
informational value;
(D) Reasonable expenses for food, travel and lodging of the
official or employee for a meeting at which the official or
employee participates in a panel or has a speaking engagement at
the meeting;
(E) Gifts of tickets or free admission extended to a public
official or public employee to attend charitable, cultural or
political events, if the purpose of such gift or admission is a
courtesy or ceremony customarily extended to the office;
(F) Gifts that are purely private and personal in nature; or
(G) Gifts from relatives by blood or marriage or a member of
the same household.
(3) The commission shall, through legislative rule
promulgated pursuant to chapter twenty-nine-a of this code,
establish guidelines for the acceptance of a reasonable honorarium
by public officials and elected officials. The rule promulgated
shall be consistent with this section. Any elected public
official may accept an honorarium only when: (1) That official
is a part-time elected public official; (2) the fee is not related
to the official's public position or duties; (3) the fee is for
services provided by the public official that are related to the
public official's regular, nonpublic trade, profession,
occupation, hobby or avocation; and (4) the honorarium is not
provided in exchange for any promise or action on the part of the
public official.
(4) Nothing in this section shall be construed so as to
prohibit the giving of a lawful political contribution as defined by law.
(5) The governor or his designee may, in the name of the
state of West Virginia, accept and receive gifts from any public
or private source. Any such gift so obtained shall become the
property of the state and shall, within thirty days of the receipt
thereof, be registered with the commission and the division of
culture and history.
(6) Upon prior approval of the joint committee on government
and finance, any member of the Legislature may solicit donations
for a regional or national legislative organization conference or
other legislative organization function to be held in the state
for the purpose of deferring costs to the state for hosting of the
conference or function. Legislative organizations are bipartisan
regional or national organizations in which the joint committee
on government and finance authorizes payment of dues or other
membership fees for the Legislature's participation, and which
assist this and other state legislatures and their staff through
any of the following:
(i) Advancing the effectiveness, independence and integrity
of legislatures in the states of the United States;
(ii) Fostering interstate cooperation and facilitating
information exchange among state legislatures;
(iii) Representing the states and their legislatures in the
American federal system of government;
(iv) Improving the operations and management of state
legislatures and the effectiveness of legislators and legislative staff, and to encourage the practice of high standards of conduct
by legislators and legislative staff;
(v) Promoting cooperation between state legislatures in the
United States and legislatures in other countries.
The solicitations may only be made in writing. The
legislative organization may act as fiscal agent for the
conference and receive all donations. In the alternative, a
bonafide banking institution may act as the fiscal agent. The
official letterhead of the Legislature may not be used by the
legislative member in conjunction with the fund-raising or
solicitation effort. The legislative organization for which
solicitations are being made shall file with the joint committee
on government and finance and with the secretary of state for
publication in the state register as provided in article two,
chapter twenty-nine-a of the code, copies of letters, brochures
and other solicitation documents, along with a complete list of
the names and last known addresses of all donors and the amount
of donations received. Any solicitation by a legislative member
shall contain the following disclaimer:
"This solicitation is endorsed by [name of member]. This
endorsement does not imply support of the soliciting organization,
nor of the sponsors who may respond to the solicitation. A copy
of all solicitations are on file with the West Virginia
Legislature's Joint Committee on Government and Finance, and with
the Secretary of State, and are available for public review."
(7) Upon written notice to the commission, any member of the board of public works may solicit donations for a regional or
national organization conference or other function related to the
office of the member to be held in the state for the purpose of
deferring costs to the state for hosting of the conference or
function. The solicitations may only be made in writing. The
organization may act as fiscal agent for the conference and
receive all donations. In the alternative, a bonafide banking
institution may act as the fiscal agent. The official letterhead
of the office of the board of public works member may not be used
in conjunction with the fund-raising or solicitation effort. The
organization for which solicitations are being made shall file
with the joint committee on government and finance, with the
secretary of state for publication in the state register as
provided in article two, chapter twenty-nine-a of the code and
with the commission, copies of letters, brochures and other
solicitation documents, along with a complete list of the names
and last known addresses of all donors and the amount of donations
received. Any solicitation by a member of the board of public
works shall contain the following disclaimer: "This solicitation
is endorsed by (name of member of Board of Public Works). This
endorsement does not imply support of the soliciting organization,
nor of the sponsors who may respond to the solicitation. Copies
of all solicitations are on file with the West Virginia
Legislature's Joint Committee on Government and Finance, with the
West Virginia Secretary of State and with the West Virginia Ethics
Commission, and are available for public review." Any moneys in excess of those donations needed for the conference or function
shall be deposited in the capitol dome and capitol improvement
fund established in section two, article four, chapter five-a of
this code.
(d) Interests in public contracts. -- (1) In addition to the
provisions of section fifteen, article ten, chapter sixty-one of
this code, no elected or appointed public official or public
employee or member of his or her immediate family or business with
which he or she is associated may be a party to or have an
interest in the profits or benefits of a contract which such the
official or employee may have direct authority to enter into, or
over which he or she may have control: Provided, That nothing
herein shall be construed to prevent or make unlawful the
employment of any person with any governmental body: Provided,
however, That nothing herein shall be construed to prohibit a
member of the Legislature from entering into a contract with any
governmental body, or prohibit a part-time appointed public
official from entering into a contract which such the part-time
appointed public official may have direct authority to enter into
or over which he or she may have control when such the official
has not participated in the review or evaluation thereof, has been
recused from deciding or evaluating and has been
excused from
voting on such the contract and has fully disclosed the extent of
such his or her interest in the contract.
(2) In the absence of bribery or a purpose to defraud, an
elected or appointed public official or public employee or a member of his or her immediate family or a business with which he
or she is associated shall not be considered as having an interest
in a public contract when such a person has a limited interest as
an owner, shareholder or creditor of the business which is the
contractor on the public contract involved. A limited interest
for the purposes of this subsection is:
(A) An interest:
(i) Not exceeding ten percent of the partnership or the
outstanding shares of a corporation; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract; or
(B) An interest as a creditor:
(i) Not exceeding ten percent of the total indebtedness of a
business; or
(ii) Not exceeding thirty thousand dollars interest in the
profits or benefits of the contract.
(3) Where the provisions of subdivisions (1) and (2) of this
subsection would result in the loss of a quorum in a public body
or agency, in excessive cost, undue hardship or other substantial
interference with the operation of a state, county, municipality,
county school board or other governmental agency, the affected
governmental body or agency may make written application to the
ethics commission for an exemption from subdivisions (1) and (2)
of this subsection.
(e) Confidential information. -- No present or former public
official or employee may knowingly and improperly disclose any confidential information acquired by him or her in the course of
his or her official duties nor use such information to further his
or her personal interests or the interests of another person.
(f) Prohibited representation. -- No present or former
elected or appointed public official or public employee shall,
during or after his or her public employment or service, represent
a client or act in a representative capacity with or without
compensation on behalf of any person in a contested case, rate-
making proceeding, license or permit application, regulation
filing or other particular matter involving a specific party or
parties which arose during his or her period of public service or
employment and in which he or she personally and substantially
participated in a decision-making, advisory or staff support
capacity, unless the appropriate government agency, after
consultation, consents to such representation. A staff attorney,
accountant or other professional employee who has represented a
government agency in a particular matter shall not thereafter
represent another client in the same or substantially related
matter in which that client's interests are materially adverse to
the interests of the government agency, without the consent of the
government agency: Provided, That this prohibition on
representation shall not apply when the client was not directly
involved in the particular matter in which such the professional
employee represented the government agency, but was involved only
as a member of a class. The provisions of this subsection shall
not apply to legislators who were in office and legislative staff who were employed at the time it originally became effective on
the first day of July, one thousand nine hundred eighty-nine, and
those who have since become legislators or legislative staff and
those who shall serve hereafter as legislators or legislative
staff.
(g) Limitation on practice before a board, agency, commission
or department. -- (1) No elected or appointed public official and
no full-time staff attorney or accountant shall, during his or her
public service or public employment or for a period of six months
one year after the termination of his or her public service or
public employment with a governmental entity authorized to hear
contested cases or promulgate regulations or propose rules, appear
in a representative capacity before the governmental entity in
which he or she serves or served or is or was employed in the
following matters:
(A) A contested case involving an administrative sanction,
action or refusal to act;
(B) To support or oppose a proposed regulation rule;
(C) To support or contest the issuance or denial of a license
or permit;
(D) A rate-making proceeding; and
(E) To influence the expenditure of public funds.
(2) As used in this subsection, "represent" includes any
formal or informal appearance before, or any written or oral
communication with, any public agency on behalf of any person:
Provided, That nothing contained in this subsection shall prohibit, during any period, a former public official or employee
from being retained by or employed to represent, assist or act in
a representative capacity on behalf of the public agency by which
he or she was employed or in which he or she served. Nothing in
this subsection shall be construed to prevent a former public
official or employee from representing another state, county,
municipal or other governmental entity before the governmental
entity in which he or she served or was employed within six months
one year after the termination of his or her employment or service
in the entity.
(3) A present or former public official or employee may
appear at any time in a representative capacity before the
Legislature, a county commission, city or town council or county
school board in relation to the consideration of a statute,
budget, ordinance, rule, resolution or enactment.
(4) Members and former members of the Legislature and
professional employees and former professional employees of the
Legislature shall be permitted to appear in a representative
capacity on behalf of clients before any governmental agency of
the state or of county or municipal governments, including county
school boards.
(5) An elected or appointed public official, full-time staff
attorney or accountant who would be adversely affected by the
provisions of this subsection may apply to the ethics commission
for an exemption from the six months' prohibition against
appearing in a representative capacity, when the person's education and experience is such that the prohibition would, for
all practical purposes, deprive the person of the ability to earn
a livelihood in this state outside of the governmental agency.
The ethics commission shall by legislative rule establish general
guidelines or standards for granting an exemption or reducing the
time period, but shall decide each application on a case-by-case
basis.
(h) Employment by regulated persons. -- (1) No full-time
official or full-time public employee may seek employment with,
be employed by or seek to purchase, sell or lease real or personal
property to or from any person who:
(A) Had a matter on which he or she took, or a subordinate is
known to have taken, regulatory action within the preceding twelve
months; or
(B) Has a matter before the agency to which he or she is
working or a subordinate is known by him or her to be working.
(2) Within the meaning of this section, the term "employment"
includes professional services and other services rendered by the
public official or public employee, whether rendered as employee
or as an independent contractor; "seek employment" includes
responding to unsolicited offers of employment as well as any
direct or indirect contact with a potential employer relating to
the availability or conditions of employment in furtherance of
obtaining employment; and "subordinate" includes only those agency
personnel over whom the public servant official or public employee
has supervisory responsibility.
(3) A full-time public official or full-time public employee
who would be adversely affected by the provisions of this
subsection may apply to the ethics commission for an exemption
from the prohibition contained in subdivision (1) of this
subsection. The ethics commission shall by legislative rule
establish general guidelines or standards for granting an
exemption, but shall decide each application on a case-by-case
basis.
(4) A full-time public official or full-time public employee
may not take personal regulatory action on a matter affecting a
person by whom he or she is employed or with whom he or she is
seeking employment or has an agreement concerning future
employment.
(5) A full-time public official or full-time public employee
may not receive private compensation for providing information or
services that he or she is required to provide in carrying out his
or her public job responsibilities.
(i) Members of the Legislature required to vote. -- Members
of the Legislature who have asked to be excused from voting or who
have made inquiry as to whether they should be excused from voting
on a particular matter and who are required by the presiding
officer of the House of Delegates or Senate of West Virginia to
vote under the rules of the particular house shall not be guilty
of any violation of ethics under the provisions of this section
for a vote so cast.
(j) Limitations on participation in licensing and rate-making proceedings. -- No public official or employee may participate
within the scope of his or her duties as a public official or
employee, except through ministerial functions as defined in
section three, article one of this chapter, in any license or
rate-making proceeding that directly affects the license or rates
of any person, partnership, trust, business trust, corporation or
association in which the public official or employee or his or her
immediate family owns or controls more than ten percent. No
public official or public employee may participate within the
scope of his or her duties as a public official or public
employee, except through ministerial functions as defined in
section three, article one of this chapter, in any license or
rate-making proceeding that directly affects the license or rates
of any person to whom the public official or public employee or
his or her immediate family, or a partnership, trust, business
trust, corporation or association of which the public official or
employee, or his or her immediate family, owns or controls more
than ten percent, has sold goods or services totaling more than
one thousand dollars during the preceding year, unless the public
official or public employee has filed a written statement
acknowledging such sale with the public agency and the statement
is entered in any public record of the agency's proceedings. This
subsection shall not be construed to require the disclosure of
clients of attorneys or of patients or clients of persons licensed
pursuant to article three, eight, fourteen, fourteen-a, fifteen,
sixteen, twenty, twenty-one or thirty-one, chapter thirty of this code.
(k) Certain compensation prohibited. -- (1) A public employee
may not receive additional compensation from another publicly
funded state, county or municipal office or employment for working
the same hours, unless:
(A) The public employee's compensation from one public
employer is reduced by the amount of compensation received from
the other public employer;
(B) The public employee's compensation from one public
employer is reduced on a pro rata basis for any work time missed
to perform duties for the other public employer;
(C) The public employee uses earned paid vacation, personal
or compensatory time or takes unpaid leave from his or her public
employment to perform the duties of another public office or
employment; or
(D) A part-time public employee who does not have regularly
scheduled work hours or a public employee who is authorized by one
public employer to make up, outside of regularly scheduled work
hours, time missed to perform the duties of another public office
or employment maintains time records, verified by the public
employee and his or her immediate supervisor at least once every
pay period, showing the hours that the public employee did, in
fact, work for each public employer. The public employer shall
submit these time records to the ethics commission on a quarterly
basis.
(2) This section does not prohibit a retired public official or public employee from receiving compensation from a publicly
funded office or employment in addition to any retirement benefits
to which the retired public official or public employee is
entitled.
(k) (l)Certain expenses prohibited. -- No public official
or public employee shall knowingly request or accept from any
governmental entity compensation or reimbursement for any expenses
actually paid by a lobbyist and required by the provisions of this
chapter to be reported, or actually paid by any other person.
(l) (m) Any person who is employed as a member of the faculty
or staff of a public institution of higher education and who is
engaged in teaching, research, consulting or publication
activities in his or her field of expertise with public or private
entities and thereby derives private benefits from such activities
shall be exempt from the prohibitions contained in subsections
(b), (c) and (d) of this section when the activity is approved as
a part of an employment contract with the governing board of such
the institution or has been approved by the employees' employee's
department supervisor or the president of the institution by which
the faculty or staff member is employed.
(m) (n) Except as provided in this section, a person who is
a public official or public employee may not solicit private
business from a subordinate public official or public employee
whom he or she has the authority to direct, supervise or control.
A person who is a public official or public employee may solicit
private business from a subordinate public official or public employee whom he or she has the authority to direct, supervise or
control when:
(A) The solicitation is a general solicitation directed to
the public at large through the mailing or other means of
distribution of a letter, pamphlet, handbill, circular or other
written or printed media; or
(B) The solicitation is limited to the posting of a notice in
a communal work area; or
(C) The solicitation is for the sale of property of a kind
that the person is not regularly engaged in selling; or
(D) The solicitation is made at the location of a private
business owned or operated by the person to which the subordinate
public official or public employee has come on his or her own
initiative.
(n) (o) The commission may, by legislative rule promulgated
in accordance with chapter twenty-nine-a of this code, may define
further exemptions from this section as necessary or appropriate.
§6B-2-5b. Ethics training requirements.
An individual who, on or after the effective date of this
subsection, is elected or appointed to serve in the Legislature,
as a member of the board of public works, and those positions in
the executive branch of state government which the governor
designates by executive order, shall, within six months of filling
such position, attend a training course conducted by the ethics
commission on the requirements of the ethics act. The commission
shall offer the training contemplated by this section once every four years and shall prescribe by legislative rule the nature,
duration and content of the training and the manner in which the
training will be conducted.
§6B-2-7. Financial disclosure statement; contents.
The financial disclosure statement required under this
article shall contain the following information:
(1) The name, residential and business addresses of the
person filing the statement and all names under which the person
does business.
(2) The name and address of each employer of the person.
(3) The name and address of each business in which the person
filing the statement has or had in the last year an interest of
ten thousand dollars at fair market value or five percent
ownership interest if that interest is valued at more ten thousand
dollars.
(3) (4) The identification, by category, of every source of
income over five one thousand dollars received during the
preceding calendar year, in his or her own name or by any other
person for his or her use or benefit, by the person filing the
statement and a brief description of the nature of the services
for which the income was received. This subdivision does not
require a person filing the statement who derives income from a
business, profession or occupation to disclose the individual
sources and items of income that constitute the gross income of
that business, profession or occupation nor does this subdivision
require a person filing the statement to report the source or amount of income derived by his or her spouse.
(4) (5) If the person, profited or benefitted in the year
prior to the date of filing from a contract for the sale of goods
or services to a state, county, municipal or other local
governmental agency either directly or through a partnership,
corporation or association in which such the person owned or
controlled more than ten percent, the person shall describe the
nature of the goods or services and identify the governmental
agencies which purchased the goods or services.
(5) (6) Each interest group or category listed below doing
business in this state with which the person filing the statement,
did business or furnished services and from which the person
received more than twenty percent of the person's his or her gross
income during the preceding calendar year. The groups or
categories are electric utilities, gas utilities, telephone
utilities, water utilities, cable television companies, interstate
transportation companies, intrastate transportation companies, oil
or gas retail companies, banks, savings and loan associations,
loan or finance companies, manufacturing companies, surface mining
companies, deep mining companies, mining equipment companies,
chemical companies, insurance companies, retail companies, beer,
wine or liquor companies or distributors, recreation-related
companies, timbering companies, hospitals or other health care
providers, trade associations, professional associations,
associations of public employees or public officials, counties,
cities or towns, labor organizations, waste disposal companies, wholesale companies, groups or associations seeking to legalize
gambling, promoting gaming or lotteries, advertising companies,
media companies, race tracks and promotional companies.
(6) (7) The names of all persons, excluding that person's
immediate family, parents or grandparents, residing or transacting
business in the state to whom the person filing the statement owes
on the date of execution of this statement in the aggregate in his
or her own name or in the name of any other person more than
twelve five thousand five hundred dollars: Provided, That nothing
herein shall require the disclosure of a mortgage on the person's
primary and secondary residences or of automobile loans on
automobiles maintained for the use of the person's immediate
family, or of a student loan, nor shall this section require the
disclosure of debts which result from the ordinary conduct of such
the person's business, profession or occupation or of debts of the
person filing the statement to any financial institution, credit
card company or business, in which the person has an ownership
interest: Provided, however, That the previous proviso shall not
exclude from disclosure loans obtained pursuant to the linked
deposit program provided for in article one-a, chapter twelve of
this code or any other loan or debt incurred which requires
approval of the state or any of its political subdivisions.
(7) (8) The names of all persons except immediate family
members, parents and grandparents residing or transacting business
in the state (other than a demand or savings account in a bank,
savings and loan association, credit union or building and loan association or other similar depository) who owes on the date of
execution of this statement more, in the aggregate, than twelve
five thousand five hundred dollars to the person filing the
statement, either in his or her own name or to any other person
for his or her use or benefit. This subdivision does not require
the disclosure of debts owed to the person filing the statement
which debts result from the ordinary conduct of such the person's
business, profession or occupation or of loans made by the person
filing the statement to any business in which the person has an
ownership interest.
(9) The source of each gift, including those described in
subdivision (2), subsection (c), section five of this article,
having a value of over one hundred dollars, received from a person
having a direct and immediate interest in a governmental activity
over which the person filing the statement has control, shall be
reported by the person filing the statement when such gift is
given to said person in his or her name or for his or her use or
benefit during the preceding calendar year: Provided, That,
effective from passage of the amendments to this section enacted
during the First Extraordinary Session of the Legislature in two
thousand five, any person filing a statement required to be filed
pursuant to this section on or after the first day of January, two
thousand five, is not required to report those gifts described in
subdivision (2), subsection (c), section five of this article that
are otherwise required to be reported under section four, article
three of this chapter: Provided, however, That gifts received by will or by virtue of the laws of descent and distribution, or
received from one's spouse, child, grandchild, parents or
grandparents, or received by way of distribution from an inter
vivos or testamentary trust established by the spouse or child,
grandchild or by an ancestor of the person filing the statement
are not required to be reported. As used in this subdivision, any
series or plurality of gifts which exceeds in the aggregate the
sum of one hundred dollars from the same source or donor, either
directly or indirectly, and in the same calendar year, shall be
regarded as a single gift in excess of that aggregate amount.
(10) The signature of the person filing the statement.
§6B-2-9. Special prosecutor authorized
(a) (1) If after referral to the appropriate county
prosecuting attorney under subsection (v), section four of this
article the ethics commission finds as the result of an
investigation of a complaint that a pattern of ethics violations
or criminal violations has occurred under this chapter or under
article five-a, chapter sixty-one of this code, exists in a state,
county or covered municipal government, county school board or one
of their respective departments, agencies, boards or commissions,
and also finds that the prosecuting attorney of the county in
which the violation occurred is, for some reason, due to ill
health or conflict of interest, unable or unwilling to take
appropriate action undertake a criminal investigation or
prosecution, the chairman chair of the ethics commission may, upon
a two-thirds vote of the members of the ethics commission, petition the appropriate circuit court for the appointment of a
special prosecutor through the West Virginia prosecuting attorneys
institute pursuant to the provisions of section six, article four,
chapter seven of this code for the purpose of conducting an
investigation to determine whether a violation of the criminal law
of this state has occurred.
(2) If the West Virginia prosecuting attorneys institute is
unable, due to a conflict of interest of its executive director,
to assign a special prosecuting attorney to a criminal
investigation or prosecution, the chair of the ethics commission
may, upon a two-thirds vote of the members of the ethics
commission, petition the appropriate circuit court for the
appointment of a special prosecutor through communication with the
board of directors of the West Virginia prosecuting attorneys
institute.
(b) A special prosecutor shall have the same authority as a
county prosecutor to investigate and prosecute persons subject to
this article for criminal violations committed in connection with
their public office or employment which constitute felonies. No
person who is serving as a prosecuting attorney or assistant
prosecuting attorney of any county is required to take an
additional oath when appointed to serve as a special prosecuting
attorney.
(c) The ethics committee shall be authorized to employ and
assign the necessary professional and clerical staff to assist any
such special prosecutor in the performance of his or her duties and to pay and to set the compensation to be paid to a special
prosecutor in an amount not to exceed seventy-five dollars per
hour up to a maximum of fifty thousand dollars per annum.
(d) The special prosecutor shall be empowered to make a
presentment to any regularly or specially impaneled grand jury in
the appointing circuit court. The special prosecutor shall be
empowered to prosecute any person indicted by such grand jury.
§6B-2-10. Violations and penalties.
(a) If any Any person who violates the provisions of
subsection (e), (f) or (g), section five of this article, or and
any person, other than a complainant, who violates the provisions
of subdivision (1), subsection (e), section four of this article,
such person, upon conviction thereof, shall be is guilty of a
misdemeanor and, upon conviction, shall be punished by confinement
confined in the county or regional jail for a period not to exceed
six months or shall be fined not more than one thousand dollars,
or both. such confinement and fine. If any person violating the
provisions of subdivision (1), subsection (e), section four of
this article shall be a A member or employee of the commission or
an employee thereof, he or she shall, upon conviction, be
convicted of violating subsection (e), section four of this
article is subject to immediate removal from office or discharge
from employment.
(b) If any Any person who violates the provisions of
subsection (f), section six of this article by willfully and
knowingly filing a false financial statement, such person or knowingly and willfully concealing a material fact in filing the
statement, is guilty of a misdemeanor and, shall, upon conviction
thereof, be deemed guilty of false swearing and shall be punished
as provided in section three, article five, chapter sixty-one of
this code, shall be fined not more than one thousand dollars, or
confined in the county or regional jail not more than one year,
or both.
(c) If any Any person who knowingly fails or refuses to file
a financial statement required by section six of this article such
person, upon conviction thereof, shall be is guilty of a
misdemeanor and, upon conviction, shall be fined not less than one
hundred dollars nor more than one thousand dollars.
(d) If any complainant violates the provisions of subdivision
(2), subsection (f), section four, article two of this chapter by
knowingly and willfully disclosing any information made
confidential by an order of the commission, he or she shall be
subject to administrative sanction by the commission as provided
for in subsection (r), section four of this article commission
member or staff knowingly violates subsection (o), section four
of this article, such person, upon conviction thereof, shall be
guilty of a misdemeanor, and shall be fined not less than one
hundred dollars nor more than one thousand dollars.
ARTICLE 3. LOBBYISTS.
§6B-3-1. Definitions.
As used in this article, unless the context in which used
clearly indicates otherwise:
(1) "Compensation" means money or any other thing of value
received or to be received by a lobbyist from an employer for
services rendered.
(2) "Employer" or "lobbyist's employer" means any person who
employs or retains a lobbyist.
(3) "Expenditure" means payment, distribution, loan, advance
deposit, reimbursement or gift of money, real or personal property
or any other thing of value; or a contract, promise or agreement,
whether or not legally enforceable.
(4) "Government officer or employee" means a member of the
Legislature, a legislative employee, the governor and other
members of the board of public works, heads of executive
departments and any other public officer or public employee under
the legislative or executive branch of state government who is
empowered or authorized to make policy and perform nonministerial
functions. In the case of elected offices included herein, the
term "government officer or employee" shall include includes
candidates who have been elected but who have not yet assumed
office.
(5) "Legislation" means bills, resolutions, motions,
amendments, nominations and other matters pending or proposed in
either house of the Legislature, and includes any other matters
that may be the subject of action by either house or any committee
of the Legislature and all bills or resolutions that, having
passed both houses, are pending approval or veto by the governor.
(6) "Lobbying" or "lobbying activity" means the act of communicating with a government officer or employee to promote,
advocate or oppose or otherwise attempt to influence:
(i) The passage or defeat or the executive approval or veto
of any legislation which may be considered by the Legislature of
this state; or
(ii) The adoption or rejection of any rule, regulation,
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld
by any executive department.
(7) "Lobbying firm" means any business entity, including an
individual contract lobbyist, which meets either of the following
criteria:
(A) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, for the purpose of lobbying on behalf of any
other person, and any partner, owner, officer or employee of the
business entity.
(B) The business entity receives or becomes entitled to
receive any compensation, other than reimbursement for reasonable
travel expenses, to communicate directly with any elected state
official, agency official or legislative official for the purpose
of lobbying on behalf of any other person.
(8) (A) "Lobbyist" means a person who, through communication
with a government officer or employee any individual employed by
a lobbying firm or who is otherwise employed or contracts for
economic consideration, other than reimbursement for reasonable travel expenses, to communicate directly or through his or her
agents with any elective state official, agency official or
legislative official for the purpose of promotes, advocates or
opposes promoting, advocating, opposing or otherwise attempts
attempting to influence:
(i) The passage or defeat or the executive approval or veto
of any legislation which may be considered by the Legislature of
this state; or
(ii) The adoption or rejection of any rule, regulation
legislative rule, standard, rate, fee or other delegated
legislative or quasi-legislative action to be taken or withheld
by any executive department.
(B) The term "lobbyist" shall does not include the following
persons, who shall be are exempt from the registration and
reporting requirements set forth in this article, unless such
persons they engage in activities which would otherwise subject
them to the registration and reporting requirements:
(i) Persons who limit their lobbying activities to appearing
before public sessions of committees of the Legislature, or public
hearings of state agencies, are exempt.
(ii) Persons who limit their lobbying activities to attending
receptions, dinners, parties or other group functions and make no
expenditure in connection with such lobbying are exempt.
(iii) Persons who engage in news or feature reporting
activities and editorial comment as working members of the press,
radio or television and persons who publish or disseminate such news, features or editorial comment through a newspaper, book,
regularly published periodical, radio station or television
station are exempt.
(iv) Persons who lobby without compensation or other
consideration, other than reimbursement for reasonable travel
expenses, for acting as lobbyists, who are not employed by a
lobbying firm or lobbyist employer, and whose total expenditures
in connection with such lobbying activities do not exceed
twenty-five one hundred fifty dollars during any calendar year,
are exempt. The exemption exemptions contained in this
subparagraph (iv) and in subparagraph (ii) of this paragraph are
intended to permit and encourage citizens of this state to
exercise their constitutional rights to assemble in a peaceable
manner, consult for the common good, instruct their
representatives, and apply for a redress of grievances.
Accordingly, such persons may lobby without incurring any
registration or reporting obligation under this article. Any
person exempt under this subparagraph (iv) or subparagraph (ii)
of this paragraph may at his or her option register and report
under this article.
(v) Persons who lobby on behalf of a nonprofit organization
with regard to legislation, without compensation, and who restrict
their lobbying activities to no more than twenty days or parts
thereof during any regular session of the Legislature, are exempt.
The commission may promulgate a legislative rule to require
registration and reporting by persons who would otherwise be exempt under this subparagraph, if it determines that such a rule
is necessary to prevent frustration of the purposes of this
article. Any person exempt under this subparagraph may, at his
or her option, register and report under this article.
(vi) The governor, members of the governor's staff, members
of the board of public works, officers and employees of the
executive branch who communicate with a member of the Legislature
on the request of that member, or who communicate with the
Legislature, through the proper official channels, requests for
legislative action or appropriations which are deemed necessary
for the efficient conduct of the public business or which are made
in the proper performance of their official duties, are exempt.
(vii) Members of the Legislature are exempt.
(viii) Persons employed by the Legislature for the purpose of
aiding in the preparation or enactment of legislation or the
performance of legislative duties are exempt.
(ix) Persons rendering professional services in drafting
proposed legislation or in advising or rendering opinions to
clients as to the construction and effect of proposed or pending
legislation are exempt.
(8) (9) "Person" means any individual, partnership, trust,
estate, business trust, association, or corporation; any
department, commission, board, publicly supported college or
university, division, institution, bureau or any other
instrumentality of the state; or any county, municipal
corporation, school district or any other political subdivision of the state.
§6B-3-2. Registration of lobbyists.
(a) Before engaging in any lobbying activity, or within
thirty days after being employed as a lobbyist, whichever occurs
first, a lobbyist shall register with the ethics commission by
filing a lobbyist registration statement. The registration
statement shall contain information and be in a form prescribed
by the ethics commission by legislative rule, including, but not
limited to, the following information:
(1) The registrant's name, business address, telephone
numbers and any temporary residential and business addresses and
telephone numbers used or to be used by the registrant while
lobbying during a legislative session;
(2) The name, address and occupation or business of the
registrant's employer;
(3) A statement as to whether the registrant is employed or
retained by his or her employer solely as a lobbyist or is a
regular employee performing services for the employer which
include, but are not limited to, lobbying;
(4) A statement as to whether the registrant is employed or
retained by his or her employer under any agreement, arrangement
or understanding according to which the registrant's compensation,
or any portion of the registrant's compensation, is or will be
contingent upon the success of his or her lobbying activity;
(5) The general subject or subjects, if known, on which the
registrant will lobby or employ some other person to lobby in a manner which requires registration under this article; and
(6) An appended written authorization from each of the
lobbyist's employers confirming the lobbyist's employment and the
subjects on which the employer is to be represented.
(b) Any lobbyist who receives or is to receive compensation
from more than one person for services as a lobbyist shall file
a separate notice of representation with respect to each person
compensating him or her for services performed as a lobbyist.
When a lobbyist whose fee for lobbying with respect to the same
subject is to be paid or contributed by more than one person, then
the lobbyist may file a single statement, in which he or she shall
detail the name, business address and occupation of each person
paying or contributing to the fee.
(c) Whenever a change, modification or termination of the
lobbyist's employment occurs, the lobbyist shall, within one week
of the change, modification or termination, furnish full
information regarding the change, modification or termination by
filing with the commission an amended registration statement.
(d) Each lobbyist who has registered shall file a new
registration statement, revised as appropriate, on the Monday
preceding the second Wednesday in January of each odd-numbered
year, and failure to do so terminates his or her registration
authorization to lobby. Until the registration is renewed, the
person may not engage in lobbying activities unless he or she is
otherwise exempt under paragraph (B), subdivision (7), section one
of this article.
§6B-3-3a. Registration fees.
(a) Each lobbyist shall, at the time he or she registers, pay
the commission a base
registration fee of sixty one hundred
dollars, plus one hundred dollars for each employer represented,
to be filed with the initial registration statement and with each
new registration statement filed by the lobbyist in subsequent
odd-numbered years: Provided, That if a lobbyist files his or her
initial registration after the first day of January during an
even-numbered year, he or she shall only be required to pay a
reduced registration fee of thirty dollars for the balance of that
year Whenever a lobbyist modifies his or her registration to add
additional employers, an additional registration fee of one
hundred dollars for each additional employer represented shall be
paid to the commission.
(b) The commission shall collect the registration fees
authorized by this section and pay them into the state treasury
to the credit of the state general fund. All fees authorized and
collected pursuant to this article shall be paid to the ethics
commission and thereafter deposited into the special revenue
account created pursuant to section six, article one of this
chapter.
§6B-3-3b. Conflict of interest.
A lobbyist or a lobbyist's immediate family member may not
participate in any decision as a member of a state or county
board, council, commission or public service district if the
lobbyist may receive direct, personal economic or pecuniary benefit from a decision of that state or county board, council,
commission or public service district. The lobbyist's economic
or pecuniary benefit must affect him or her directly and not
merely as a member of a class.
§6B-3-3c. Lobbyist training course.
The commission shall provide a training course for registered
lobbyists and prospective lobbyists at least twice each year
regarding the provisions of the ethics code relevant to lobbyists.
One such course shall be conducted during the month of January.
In addition to the registration fees authorized in section three-a
of this article, the commission may collect a reasonable fee from
those attending lobbyist training, which is to be collected by the
ethics commission and deposited in the special revenue account
created pursuant to section six, article one of this chapter. To
maintain registration and engage in lobbying activities, a
lobbyist must complete one such training course per year.
§6B-3-4. Reporting by lobbyists.
(a) A registered lobbyist shall file with the commission
reports of his or her lobbying activities, signed by the lobbyist.
The reports shall be filed three times a year as follows:
(1) On or before the Monday preceding the second Wednesday in
January of each year fifteenth day of May, a lobbyist shall file
an annual report of all lobbying activities in which he or she
engaged in during the preceding calendar year; and from the first
day of January through the thirtieth day of April.
(2) If a lobbyist engages in lobbying with respect to legislation, then:
(A) Between the fortieth and forty-fifth days of any regular
session of the Legislature in which any lobbying occurred, the
lobbyist shall file a report describing all of his or her lobbying
activities which occurred since the beginning of the calendar
year; and
(B) Within twenty-one days after the adjournment sine die of
any regular or extraordinary session of the Legislature in which
any lobbying occurred, the lobbyist shall file a report describing
all of his or her lobbying activities which occurred since the
beginning of the calendar year or since the filing of the last
report required by this section, whichever is later.
(2) On or before the fifteenth day of September, a lobbyist
shall report all lobbying activities in which he or she engaged
from the first day of May through the thirty-first day of August;
(3) On or before the fifteenth day of January, a lobbyist
shall report all lobbying activities in which he or she engaged
from the first day of September through the thirty-first day of
December.
(b) If the date on which a lobbyist expenditure report is due
falls on a Saturday, Sunday or legal holiday, the report will be
considered timely filed if it is postmarked not later than the
next business day. If a registered lobbyist files a late report,
the lobbyist shall pay the commission a fee of ten dollars for
each late day, not to exceed a total of two hundred fifty dollars.
If a registered lobbyist fails to file a report or to pay the required fee for filing an untimely report, the commission may,
after written notice sent by registered mail, return receipt
requested, suspend the lobbyist's privileges as a registered
lobbyist until the lobbyist has satisfactorily complied with all
reporting requirements and paid the required fee.
(b) (c) (1) Except as otherwise provided in this section,
each report filed by a lobbyist shall show the total amount of all
expenditures for lobbying activities made or incurred by on behalf
of the lobbyist, or on behalf of the lobbyist, by the lobbyist's
employer during the period covered by the report. The report
shall also show subtotals segregated according to financial
category, including meals and beverages; living accommodations;
advertising; travel; contributions; gifts to public officials or
employees or to members of the immediate family of a public
official or employee; and other expenses or services.
(2) Lobbyists are not required to report the following:
(A) Unreimbursed personal living and travel expenses not
incurred directly for lobbying;
(B) Any expenses incurred for his or her the lobbyist's own
living accommodations;
(C) Any expenses incurred for his or her the lobbyist's own
travel to and from public meetings or hearings of the legislative
and executive branches; or
(D) Any expenses incurred for telephone and any office
expenses, including rent and salaries and wages paid for staff and
secretarial assistance. and
(E) Separate expenditures to or on behalf of a public
official or employee in an amount of less than five dollars.
(c) (d) If a lobbyist is employed by more than one employer,
the report shall show the proportionate amount of the expenditures
in each category incurred on behalf of each of his or her
employers.
(d) (e) The report shall describe the subject matter of the
lobbying activities in which the lobbyist has been engaged during
the reporting period.
(e) (f) If, during the period covered by the report, the
lobbyist made expenditures or expenditures were made or incurred
on behalf of the lobbyist in the reporting categories of meals and
beverages, living accommodations, travel, gifts or other
expenditures, other than for those expenditures governed by
subsection (f) (g) of this section, which expenditures in any
reporting category total more than twenty-five dollars to or on
behalf of any particular public official or employee, the lobbyist
shall report the name of the public official or employee to whom
or on whose behalf the expenditures were made, the total amount
of the expenditures, and the subject matter of the lobbying
activity, if any: Provided, That a registered lobbyist who
entertains more than one public official or public employee at a
time with meals and beverages complies with the provisions of this
section if he or she reports the names of the public officials or
public employees entertained and the total amount expended for
meals and beverages for all of the public officials or public employees entertained: Provided, however, That where several
lobbyists join in entertaining one or more public officials or
public employees at a time with meals and beverages, each lobbyist
complies with the provisions of this section by reporting the
names of the public officials or public employees entertained and
his or her proportionate share of the total amount expended for
meals and beverages for all of the public officials or public
employees entertained. Under this subsection, no portion of the
amount of an expenditure for a dinner, party or other function
sponsored by a lobbyist or a lobbyist's employer need be
attributed to or counted toward the reporting amount of twenty-
five dollars for a particular public official or employee who
attends the function if the sponsor has invited to the function
all the members of: (1) The Legislature; (2) either house of the
Legislature; (3) a standing or select committee of either house;
or (4) a joint committee of the two houses of the Legislature.
However, the amount spent for the function shall be added to other
expenditures for the purpose of determining the total amount of
expenditures reported under subdivision (1), subsection (b) (c)
of this section: Provided, That if the expenditure is for a
function to which the entire membership of the Legislature has
been invited, the lobbyist need only report that fact, the total
amount of the expenditure and the subject matter of the lobbying
activity.
(f) (g) If, during the period covered by the report, the
lobbyist made expenditures in the reporting categories of meals and beverages, lodging, travel, gifts and scheduled entertainment,
which reporting expenditures in any reporting category total more
than twenty-five dollars for or on behalf of a particular public
official or public employee in return for the participation of the
public official or employee in a panel or speaking engagement at
the a meeting, the lobbyist shall report the name of the public
official or employee to whom or on whose behalf the expenditures
were made and the total amount of the expenditures.
§6B-3-7. Duties of lobbyists.
A person required to register as a lobbyist under this
chapter shall article also have has the following obligations, the
violation of which shall constitute constitutes cause for
revocation of his or her registration and termination of his or
her lobbying privileges, and may subject such the person, and such
the person's employer, if such employer aids, abets, ratifies or
confirms any such act the violation, to other civil liabilities,
as provided by this chapter.
(1) Such persons Any person required to register as a
lobbyist shall obtain, and preserve and make available for
inspection by the commission at any time all accounts, bills,
receipts, books, papers and documents necessary to substantiate
the financial reports required to be made under this article for
a period of at least five two years from the date of the filing
of the statement containing such to which those items , which
accounts, bills, receipts, books, papers, and documents shall be
made available for inspection by the commission at any time relate: Provided, That if a lobbyist is required under the terms
of his or her employment contract to turn any records over to his
or her employer, responsibility for the preservation of such the
records under this subsection shall rest with such the employer.
(2) In addition, a person required to register as a lobbyist
shall may not:
(A) Engage in any lobbying activity as a lobbyist before
registering as such as a lobbyist;
(B) Knowingly deceive or attempt to deceive any government
officer or employee as to any fact pertaining to a matter which
is the subject of lobbying activity;
(C) Cause or influence the introduction of any legislation
for the purpose of thereafter being employed to secure its defeat;
(D) Exercise any undue influence, extortion or unlawful
retaliation upon any government officer or employee by reason of
such the government officer or employee's position with respect
to, or his or her vote upon, any matter which is the subject of
lobbying activity;
(E) Exercise undue influence upon any legislator or other
privately employed government officer or employee through
communications with such the person's employer;
(F) Give a gift to any government officer or employee in
excess of or in violation of any limitations on gifts set forth
in subsection (c), section five, article two of this chapter, or
give any gift, whether lawful or unlawful, to a government officer
or employee without such the government officer or employee's knowledge and consent.
§6B-3-11. Compliance audits.
(a) The commission shall initiate, by lottery, random audits
of lobbyist registration statements and disclosure reports
required to be filed under this chapter on or after the first day
of July, two thousand five: Provided, That the commission may not
conduct compliance audits pursuant to this section until it has
proposed for promulgation and received final approval from the
Legislature of a legislative rule in accordance with the
provisions of chapter twenty-nine-a of this code setting forth,
among other things, the manner in which the audit is to be
conducted, the information, documents and materials to be
considered during the audit, the selection and qualification of
the auditor(s), the audit procedures to be employed by the
auditors and the preparation and contents of any post-audit
reports.
(b) The commission may hold up to four lotteries per year.
The number of lotteries held within a given year will be a matter
within the commission's discretion.
(c) The number of audits to be conducted will be determined
by the commission through resolutions adopted at public meetings
and based on various factors, including the complexity, results
and time required to complete the audits.
(d) No lobbyist or lobbyist's employer will be subject to a
random audit more than once in any 24-month period.;
On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as
follows:
That §6B-1-3 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §6B-1-6; that §6B-2-1, §6B-2-2,
§6B-2-4, §6B-2-5, §6B-2-7, §6B-2-9 and §6B-2-10 of said code be
amended and reenacted; that said code be amended by adding thereto
three new sections, designated §6B-2-2a, §6B-2-3a and §6B-2-5b;
that §6B-3-1, §6B-3-2, §6B-3-3a, §6B-3-4 and §6B-3-7 of said code
be amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §6B-3-3b, §6B-3-3c and
§6B-3-11, all to read as follows:;
And,
On pages one through five, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 1003--A Bill to amend and
reenact §6B-1-3 of the code of West Virginia, 1931, as amended;
to amend said code by adding thereto a new section, designated
§6B-1-6; to amend and reenact §6B-2-1, §6B-2-2, §6B-2-4, §6B-2-5,
§6B-2-7, §6B-2-9 and §6B-2-10 of said code; to amend said code by
adding thereto three new sections, designated §6B-2-2a, §6B-2-3a
and §6B-2-5b; to amend and reenact §6B-3-1, §6B-3-2, §6B-3-3a,
§6B-3-4 and §6B-3-7 of said code; and to amend said code by adding
thereto three new sections, designated §6B-3-3b, §6B-3-3c and
§6B-3-11, all relating generally to the ethical standards of
public officers, employees and lobbyists; providing a definition of certain terms; creating a special revenue account; clarifying
membership qualifications for the West Virginia ethics commission;
modifying compensation and procedure for meetings of the West
Virginia ethics commission; revising the powers, duties and
authority of the commission; providing for procedures with respect
to the filing of complaints against persons subject to said
chapter, the determination of probable cause that a violation of
this chapter has occurred and the conduct of hearings with respect
thereto; establishing the probable cause review board; providing
for appointment, powers and duties; providing for confidentiality
requirements as to commission members and staff, complainants and
informants; establishing prohibition against certain commission
members and staff for commenting on commission proceedings;
altering sanctions that commission may impose; providing immunity
for good faith complainants and sanctions for bad faith filings;
referral of criminal conduct to prosecutor; limitations on filing
complaints; altering statute of limitations; clarifying use of
public office for private gain; permitting solicitation of certain
donations by members of the board of public works; providing
ethical standards for elected and appointed officials as well as
certain public employees; prohibiting public officials and
employees from receiving double compensation in certain
circumstances; modifying penalties; providing for ethics training
for certain public officials and employees; revising the contents
of financial disclosure statements required of certain public
officials and public employees; providing for the appointment of special prosecutors in certain cases; providing for penalties for
violations of said chapter; providing definitions of certain terms
related to lobbyists; providing for registration and reporting
requirements for lobbyists; modifying registration fees for
lobbyists; clarifying conflict of interests related to lobbying
activities; providing for a lobbyist training course; providing
for reporting requirements for lobbyists; altering duties of
lobbyists and defining certain acts which are violations; and
providing for random compliance audits of lobbyists and their
employers.
Following extended discussion,
The question being on the adoption of Senator Kessler's
amendments to the House of Delegates amendments to the bill (Eng.
Com. Sub. for S. B. No. 1003), the same was put and prevailed.
On motion of Senator Chafin, the Senate concurred in the
House of Delegates amendments, as amended.
Engrossed Committee Substitue for Senate Bill No. 1003, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe,
Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: None.
Absent: Bowman, Facemyer and Fanning--3.
So, a majority of all the members elected to the Senate
having voted in the affirmative, the President declared the bill
(Eng. Com. Sub. for S. B. No. 1003) passed with its Senate amended
title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Caruth, Chafin, Deem, Dempsey, Edgell, Foster, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Bowman, Facemyer and Fanning--3.
So, two thirds of all the members elected to the Senate
having voted in the affirmative, the President declared the bill
(Eng. Com. Sub. for S. B. No. 1003) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed until 1 p.m.
today.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and
requested the concurrence of the Senate in the House of Delegates
amendments, as to
Eng. Senate Bill No. 1004, Relating generally to workers'
compensation.
On motion of Senator Chafin, the message on the bill was
taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk
On page twelve, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §4-11A-2 of the code of West Virginia, 1931, be amended
and reenacted; that §11-9-2 of said code be amended and reenacted;
that §11-10-3 of said code be amended and reenacted; that said
code be amended by adding thereto a new article, designated
§11-13V-1, §11-13V-2, §11-13V-3, §11-13V-4, §11-13V-5, §11-13V-6,
§11-13V-7, §11-13V-8, §11-13V-9, §11-13V-10, §11-13V-11,
§11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15, §11-13V-16 and
§11-13V-17; that said code be amended and reenacted by adding
thereto a new section, designated §11-21-96; that §23-1-1,
§23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13,
§23-1-14, §23-1-15, §23-1-17 and §23-1-19 of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §23-1-1g; that §23-2-1, §23-2-1d, §23-2-2,
§23-2-3, §23-2-4, §23-2-5, §23-2-5a and §23-2-9 of said code be
amended and reenacted; that §23-2A-1 of said code be amended and
reenacted; that said code be amended by adding thereto a new
article, designated §23-2C-1, §23-2C-2, §23-2C-3, §23-2C-4,
§23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8, §23-2C-9, §23-2C-10, §23-2C-11, §23-2C-12, §23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16,
§23-2C-17, §23-2C-18, §23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22
and §23-2C-23; that said code be amended by adding thereto a new
article, designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4,
§23-2D-5, §23-2D-5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and
§23-2D-10; that §23-3-1 and §23-3-4 of said code be amended and
reenacted; that §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3,
§23-4-3b, §23-4-4, §23-4-6, §23-4-6a, §23-4-6b, §23-4-7, §23-4-7a,
§23-4-7b, §23-4-8, §23-4-8a, §23-4-8b, §23-4-8c, §23-4-9,
§23-4-10, §23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a,
§23-4-15b, §23-4-16, §23-4-16a, §23-4-17, §23-4-20, §23-4-24 and
§23-4-25 of said code be amended and reenacted; that §23-4A-1 and
§23-4A-4 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §23-4A-9; that
said code be amended by adding thereto a new section, designated
§23-4B-9; that §23-4C-5 of said code be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §23-4C-6; that §23-5-1, §23-5-2, §23-5-3, §23-5-4,
§23-5-5, §23-5-7, §23-5-8, §23-5-9, §23-5-10, §23-5-11, §23-5-12
and §23-5-15 of said code be amended and reenacted; that
§29-22A-10 and §29-22A-10b of said code be amended and reenacted;
that §33-1-2 and §33-1-10 of said code be amended and reenacted;
that §33-2-10 and §33-2-20 of said code be amended and reenacted;
that §33-41-2, §33-41-8 and §33-41-11 of said code be amended and
reenacted; and that §61-3-24e, §61-3-24f, §61-3-24g and §61-3-24h
of said code be amended and reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT
MONEYS.
§4-11A-2. Receipt of settlement funds and required deposit in
West Virginia tobacco settlement medical trust fund
until the first day of June, two thousand five, then
to workers' compensation deficit reduction fund.
(a) The Legislature finds and declares that certain dedicated
revenues should be preserved in trust for the purpose of
stabilizing the state's health related programs and delivery
systems. It further finds and declares that these dedicated
revenues should be preserved in trust for the purpose of educating
the public about the health risks associated with tobacco usage
and establishing a program designed to reduce and stop the use of
tobacco by the citizens of this state and in particular by
teenagers.
(b) There is hereby created a special account in the state
treasury, designated the "West Virginia Tobacco Settlement Medical
Trust Fund", which shall be an interest-bearing account and may
be invested in the manner permitted by section nine, article six,
chapter twelve of this code, with the interest income a proper
credit to the fund. Unless contrary to federal law, fifty percent
of all revenues received pursuant to the master settlement
agreement shall be deposited in this fund. Funds paid into the
account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which
may be received from any governmental entity or unit or any
person, firm, foundation or corporation;
(3) Any appropriations by the Legislature which may be made
for this purpose; and
(4) Any funds or accrued interest remaining in the board of
risk and insurance management physicians' mutual insurance company
account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after the first day of
July, two thousand four.
(c) The moneys from the principal in the trust fund may not
be expended for any purpose, except that on the first day of
April, two thousand three, the treasurer shall transfer to the
board of risk and insurance management physicians' mutual
insurance company account created by section seven, article
twenty-f, chapter thirty-three of this code, twenty-four million
dollars from the West Virginia tobacco settlement medical trust
fund for use as the initial capital and surplus of the physicians'
mutual insurance company created pursuant to article twenty-f,
chapter thirty-three of this code. The remaining moneys in the
trust fund resulting from interest earned on the moneys in the
fund and the return on investments of the moneys in the fund shall
be available only upon appropriation by the Legislature as part
of the state budget and expended in accordance with the provisions
of section three of this article.
(d) Notwithstanding the preceding subsections to the
contrary, the first thirty million dollars of all revenues
received after the thirtieth day of June, two thousand five,
pursuant to section IX(c)(1) of the tobacco master settlement
agreement shall in the fiscal year beginning the first day of
July, two thousand five, and each fiscal year thereafter, be
deposited in the workers' compensation debt reduction fund
established in the state treasury in section five, article two-d,
chapter twenty-three of this code. Receipts in excess of thirty
million dollars shall be deposited as provided in section three
of this article.
(e) Notwithstanding anything in this code to the contrary,
strategic compensation payments received pursuant to section
IX(c)(2) of the tobacco master settlement agreement, beginning in
two thousand eight, shall be deposited in their entirety in the
workers' compensation debt reduction fund.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter:
(1) Inheritance and transfer taxes and estate taxes imposed
by article eleven of this chapter;
(2) Business registration tax imposed by article twelve of
this chapter;
(3) Minimum severance tax on coal imposed by article twelve-b of this chapter;
(4) Corporate license tax imposed by article twelve-c of this
chapter;
(5) Business and occupation tax imposed by article thirteen
of this chapter;
(6) Severance and business privilege tax taxes imposed by
article thirteen-a of this chapter;
(7) Additional severance taxes imposed by article thirteen-v
of this chapter;
(8) Telecommunications tax imposed by article thirteen-b of
this chapter;
(8) (9) Gasoline and special fuels excise tax imposed by
article fourteen of this chapter;
(9) (10) Motor fuels excise tax imposed by article fourteen-c
of this chapter;
(10) (11) Motor carrier road tax imposed by article
fourteen-a of this chapter;
(11) (12) Interstate fuel tax agreement authorized by article
fourteen-b of this chapter;
(12) (13) Consumers sales and service tax imposed by article
fifteen of this chapter;
(13) (14) Use tax imposed by article fifteen-a of this
chapter;
(14) (15) Tobacco products excise tax taxes imposed by
article seventeen of this chapter;
(15) (16) Soft drinks tax imposed by article nineteen of this chapter;
(16) (17) Personal income tax imposed by article twenty-one
of this chapter;
(17) (18) Business franchise tax imposed by article
twenty-three of this chapter;
(18) (19) Corporation net income tax imposed by article
twenty-four of this chapter; and
(19) (20) Health care provider tax taxes imposed by article
twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c,
chapter eight of this code; the charitable bingo fee imposed by
sections six and six-a, article twenty, chapter forty-seven of
this code; the charitable raffle fee imposed by section seven,
article twenty-one of said chapter; and the charitable raffle
boards and games fees imposed by section three, article
twenty-three of said chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c)
of this section, with like effect, as if the provisions of this
article were applicable only to the tax and were set forth in
extenso in this article.
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and
transfer taxes, estate tax and interstate compromise and
arbitration of inheritance and death taxes, business registration
tax, annual tax on incomes of certain carriers, minimum severance
tax on coal, corporate license tax, business and occupation tax,
severance tax, additional severance taxes, telecommunications tax,
interstate fuel tax, consumers sales and service tax, use tax,
tobacco products excise tax taxes, soft drinks tax, personal
income tax, business franchise tax, corporation net income tax,
gasoline and special fuels excise tax, motor fuels excise tax,
motor carrier road tax, health care provider tax taxes and tax
relief for elderly homeowners and renters administered by the
state tax commissioner. This article shall not apply to ad valorem
taxes on real and personal property or any other tax not listed
in this section, except that in the case of ad valorem taxes on
real and personal property, when any return, claim, statement or
other document is required to be filed, or any payment is required
to be made within a prescribed period or before a prescribed date,
and the applicable law requires delivery to the office of the
sheriff of a county of this state, the methods prescribed in
section five-f of this article for timely filing and payment to
the tax commissioner or state tax department are the same methods
utilized for timely filing and payment with the sheriff.
(b) The provisions of this article apply to beer barrel tax levied by article sixteen of this chapter; and to wine liter tax
levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article apply to any other article
of this chapter when the application is expressly provided for by
the Legislature.
(d) The provisions of this article apply to municipal sales
and use taxes imposed under article thirteen-c, chapter eight of
this code and collected by the tax commissioner.
ARTICLE 13V. WORKERS' COMPENSATION DEBT REDUCTION ACT.
§11-13V-1. Short title.
This article may be cited as the "Workers' Compensation Debt
Reduction Act of 2005". No inference, implication or presumption
of legislative construction shall be drawn or made by reason of
the location or grouping of any particular section or provision
or portion of this article and no legal effect shall be given to
any descriptive matter of headings relating to any part, section,
subsection, subdivision or paragraph of this article.
§11-13V-2. Legislative intent and findings.
(a) Legislative intent. -- It is the intent of the
Legislature in enacting this article to impose new, additional
privilege taxes on severing or producing natural resources in this
state and for the net proceeds from collection of the new taxes
to be dedicated to paying down the unfunded liability in the
workers' compensation fund, or paying debt service on bonds sold
to raise funds to pay down the unfunded liability in the workers'
compensation fund, or for any combination of these two purposes.
(b) Findings. -- The Legislature finds and declares that:
(1) The unfunded liability in the state workers' compensation
program exceeds three billion dollars;
(2) Until a fiscally responsible plan for paying this
unfunded liability is provided by the Legislature, the condition
of the workers' compensation fund will continue to negatively
affect economic development in this state;
(3) Until a fiscally responsible plan for paying this
unfunded liability is provided by the Legislature, the Legislature
will not be able to privatize workers' compensation;
(4) Until a fiscally responsible plan for paying this
unfunded liability is provided, the Legislature will need to
annually appropriate dollars from the general revenue fund of the
state to pay down this unfunded liability and to cover the annual
shortfall between funds available to pay workers' compensation
benefits to injured workers and premiums collected by the workers'
compensation fund from employers;
(5) In accordance with the constitution of this state and
decisions of the West Virginia supreme court of appeals, the
Legislature may enact a new tax and dedicate the net collections
of the tax to pay down this unfunded liability or to pay debt
service on bonds sold by the state to raise funds to pay down this
unfunded liability.
§11-13V-3. Definitions.
All definitions set forth in articles twelve-d and article
thirteen-a of this chapter apply to those defined terms that also appear in this article, if applicable.
§11-13V-4. Imposition of tax.
(a) Imposition of additional tax on privilege of severing
coal. -- Upon every person exercising the privilege of engaging
within this state in severing, extracting, reducing to possession
or producing coal for sale, profit or commercial use, there is
hereby imposed an additional annual severance tax for exercising
the privilege after the thirtieth day of November, two thousand
five. The tax shall be fifty-six cents per ton and the measure
of the tax is tons of clean coal severed or produced in this state
by the taxpayer after the thirtieth day of November, two thousand
five, for sale, profit or commercial use during the taxable year.
When the person mining the coal sells raw coal, the measure of tax
shall be ton of clean coal determined in accordance with rules
promulgated by the tax commissioner as provided in article three,
chapter twenty-nine-a of this code. If this rule is filed for
public comment before the first day of July, two thousand five,
the rule may be promulgated as an emergency legislative rule.
This tax shall be in addition to all taxes imposed with respect
to the severance and production of coal in this state including,
but not limited to, the taxes imposed by articles twelve-d and
thirteen-a of this chapter and the taxes imposed by sections
eleven and thirty-two, article three, chapter twenty-two of this
code, if applicable.
(b) Imposition of additional tax on privilege of severing
natural gas. -- For the privilege of engaging or continuing within this state in the business of severing natural gas for sale,
profit or commercial use, there is hereby levied and shall be
collected from every person exercising this privilege an
additional annual privilege tax. The rate of this additional tax
shall be four and seven-tenths cents per mcf of natural gas and
the measure of the tax is natural gas produced after the thirtieth
day of November, two thousand five, determined at the point where
the production privilege ends for purposes of the tax imposed by
section three-a, article thirteen-a of this chapter, and with
respect to which the tax imposed by section three-a of said
article thirteen-a is paid. The additional tax imposed by this
subsection shall be collected with respect to natural gas produced
after the thirtieth day of November, two thousand five.
(c) Imposition of additional tax on privilege of severing
timber. -- For the privilege of engaging or continuing within this
state in the business of severing timber for sale, profit or
commercial use, there is hereby levied and shall be collected from
every person exercising this privilege an additional annual
privilege tax equal to two and seventy-eight hundredths percent
of the gross value of the timber produced, determined at the point
where the production privilege ends for purposes of the tax
imposed by section thirteen-b, article thirteen-a of this chapter,
and upon which the tax imposed by section three-b of said article
thirteen-a is paid. The additional tax imposed by this subsection
shall be collected with respect to timber produced after the
thirtieth day of November, two thousand five.
(d) No pyramiding of tax burden. -- Each ton of coal and each
mcf of natural gas severed in this state after the effective date
of the taxes imposed by this section shall be included in the
measure of a tax imposed by this section only one time.
(e) Effect on utility rates. -- The public service commission
shall, upon the application of any public utility that, as of the
effective date of the taxes imposed by this section, is not
currently making periodic adjustments to its approved rates and
charges to reflect changes in its fuel costs because the mechanism
historically used to make such periodic adjustments is suspended
by an order of the commission, allow such utility to defer, for
future recovery from its customers, any increase in its costs
attributable to the taxes imposed by this section upon: Coal and
natural gas severed in this state and utilized in the production
of electricity generated or produced in this state and sold to
customers in this state; coal and natural gas severed in this
state and utilized in the production of electricity not generated
or produced in this state that is sold to customers in this state;
and natural gas severed in this state that is sold to customers
in this state.
(f) Dedication of new taxes. -- The net amount of all moneys
received by the tax commissioner from collection of the taxes
imposed by this section, including any interest, additions to tax,
or penalties collected with respect to these taxes pursuant to
article ten, chapter eleven of this code, shall be deposited in
the workers' compensation debt reduction fund created in article two-d, chapter twenty-three of this code. As used in this
section, "net amount of all taxes received by the tax
commissioner" means the gross amount received by the tax
commissioner less the amount of any refunds paid for overpayment
of the taxes imposed by this article, including the amount of any
interest on the overpayment amount due the taxpayer under the
provisions of section fourteen, article ten of this chapter.
(g) Sunset expiration date of taxes. -- The new taxes imposed
by this section shall expire and not be imposed with respect to
privileges exercised on and after the first day of the month
following the month in which the governor certifies to the
Legislature that: (1) The revenue bonds issued pursuant to
article two-d, chapter twenty-three of this code, have been
retired, or payment of the debt service provided for; and (2) that
an independent certified actuary has determined that the unfunded
liability of the old fund, as defined in chapter twenty-three of
this code, has been paid or provided for in its entirety.
Expiration of the taxes imposed in this section as provided in
this subsection shall not relieve any person from payment of any
tax imposed with respect to privileges exercised before the
expiration date.
§11-13V-5. Accounting periods and methods of accounting.
(a) General rule. -- For purposes of the taxes imposed by
this article, a taxpayer's taxable year shall be the same as the
taxpayer's taxable year for federal income tax purposes. If
taxpayer has no taxable year for federal income tax purposes, then the calendar year shall be taxpayer's taxable year under this
article.
(b) Change of taxable year. -- If a taxpayer's taxable year
is changed for federal income tax purposes, taxpayer's taxable
year for purposes of this article is similarly changed. The
taxpayer shall provide a copy of the authorization for the change
from the Internal Revenue Service, with taxpayer's annual return
for the taxable year filed under this article.
(c) Methods of accounting same as federal. --
(1) Same as federal. -- A taxpayer's method of accounting
under this article shall be the same as the taxpayer's method of
accounting for federal income tax purposes. In the absence of any
method of accounting for federal income tax purposes, the accrual
method of accounting shall be used, unless the tax commissioner,
in writing, consents to the use of another method. Accrual basis
taxpayers may deduct bad debts only in the year to which they
relate.
(2) Change of accounting methods. -- If a taxpayer's method
of accounting is changed for federal income tax purposes, the
taxpayer's method of accounting for purposes of this article is
similarly changed. The taxpayer shall provide a copy of the
authorization for the change from the internal revenue service
with its annual return for the taxable year filed under this
article.
(d) Adjustments. -- In computing a taxpayer's liability for
tax for any taxable year under a method of accounting different from the method under which the taxpayer's liability for tax under
this article for the previous year was computed, there shall be
taken into account those adjustments which are determined, under
rules promulgated by the tax commissioner in accordance with
article three, chapter twenty-nine-a of this code, to be necessary
solely by reason of the change in order to prevent amounts from
being duplicated or omitted.
§11-13V-6. Time for filing annual returns and other documents.
On or before the expiration of one month after the end of the
taxable year, every taxpayer subject to a tax imposed by this
article shall make and file an annual return for the entire
taxable year showing all information the tax commissioner requires
and computing the amount of taxes due under this article for the
taxable year. Returns made on the basis of a calendar year shall
be filed on or before the thirty-first day of January following
the close of the calendar year. Returns made on the basis of a
fiscal year shall be filed on or before the last day of the first
month following the close of the fiscal year.
§11-13V-7. Periodic installment payments of taxes imposed by
this article; exceptions.
(a) General rule. -- Except as provided in subsection (b) of
this section, taxes levied by this article are due and payable in
periodic installments as follows:
(1) Tax of fifty dollars or less per month. -- If a person's
aggregate annual tax liability under this article and article
thirteen-a of this chapter is reasonably expected to be fifty dollars or less per month, no installment payments of tax are
required under this section during that taxable year.
(2) Tax of more than one thousand dollars per month. -- For
taxpayers whose aggregate estimated tax liability under this
article and article thirteen-a of this chapter exceeds one
thousand dollars per month, the tax is due and payable in monthly
installments on or before the last day of the month following the
month in which the tax accrued: Provided, That the installment
payment otherwise due under this subdivision on or before the
thirtieth day of June each year shall be remitted to the tax
commissioner on or before the fifteenth day of June each year.
When this subdivision applies, the taxpayer shall, on or before
the due date specified in this subdivision, make out an estimate
of the tax for which the taxpayer is liable for the preceding
month, sign the estimate and mail it together with a remittance,
in the form prescribed by the tax commissioner, of the amount of
tax due to the office of the tax commissioner: Provided, however,
That the installment payment otherwise due under this paragraph
on or before the thirtieth day of June each year shall be remitted
to the tax commissioner on or before the fifteenth day of June.
(3) Tax of one thousand dollars per month or less. -- For
taxpayers whose estimated tax liability under this article is one
thousand dollars per month or less, the tax is due and payable in
quarterly installments on or before the last day of the month
following the quarter in which the tax accrued. When this
subdivision applies, the taxpayer shall, on or before the last day of the fourth, seventh and tenth months of the taxable year, make
out an estimate of the tax for which the taxpayer is liable for
the preceding quarter, sign the same and mail it together with a
remittance, in the form prescribed by the tax commissioner, of the
amount of tax due to the office of the tax commissioner.
(b) Exception. -- Notwithstanding the provisions of
subsection (a) of this section, the tax commissioner, if he or she
considers it necessary to ensure payment of the tax, may require
the return and payment under this section for periods of shorter
duration than those prescribed in subsection (a) of this section.
(c) Remittance by electronic funds transfer. -- When the
taxpayer's annual aggregate liability for tax under this article
and article thirteen-a of this chapter exceeds fifty thousand
dollars for the prior tax year, payments of estimated tax required
by this article and article thirteen-a during the then current tax
year shall be by electronic funds transfer, in accordance with
rules of the tax commissioner and rules of the state treasurer,
except as otherwise permitted by the tax commissioner.
§11-13V-8. Extension of time for filing returns.
The tax commissioner may, upon written request received on or
prior to the due date of the annual return or any periodic
estimate, grant a reasonable extension of time for filing any
return or other document required by this article, upon such terms
as he or she may by rule prescribe, or by contract require, if
good cause satisfactory to the tax commissioner is provided by the
taxpayer.
§11-13V-9. Extension of time for paying tax.
(a) Amount determined on return. -- The tax commissioner may
extend the time for payment of the amount of the tax shown, or
required to be shown, on any return required by this article (or
any periodic installment payments), for a reasonable period not
to exceed six months from the date fixed for payment thereof.
(b) Amount determined as deficiency. -- Under rules
prescribed by the tax commissioner in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
the commissioner may extend the time for the payment of the amount
determined as a deficiency of the taxes imposed by this article
for a period not to exceed eighteen months from the date fixed for
payment of the deficiency. In exceptional cases, a further period
of time not to exceed twelve months may be granted. An extension
under this subsection may be granted only where it is shown to the
satisfaction of the tax commissioner that payment of a deficiency
upon the date fixed for the payment thereof will result in undue
hardship to the taxpayer.
(c) No extension for certain deficiencies. -- No extension
may be granted under this section for any deficiency if the
deficiency is due to negligence, to intentional disregard of rules
and regulations, or to fraud with intent to evade tax.
§11-13V-10. Place for filing returns or other documents.
Tax returns, statements or other documents, or copies
thereof, required by this article, or rules promulgated by the
commissioner, shall be filed with the tax commissioner by delivery, in person or by mail, to his or her office in
Charleston, West Virginia: Provided, That the tax commissioner
may, by rules, prescribe the place and other means of delivery for
filing such returns, statements, or other documents, or copies
thereof.
§11-13V-11. Time and place for paying tax shown on returns.
(a) General rule. -- The person required to make the annual
return required by this article shall, without assessment or
notice and demand from the tax commissioner, pay the tax at the
time and place fixed for filing the return (determined without
regard to any extension of time for filing the return).
(b) Date fixed for payment of tax. -- The date fixed for
payment of the taxes imposed by this article shall be deemed to
be a reference to the last day fixed for the payment (determined
without regard to any extension of time for paying the tax).
(c) Terms of extension. -- Any extension of time for payment
of tax under this section may be granted upon such terms as the
tax commissioner may, by rule prescribe, or by contract require.
§11-13V-12. Signing of returns and other documents.
(a) General. -- Any return, statement or other document
required to be made under the provisions of this article shall be
signed in accordance with instructions or regulations prescribed
by the tax commissioner.
(b) Signing of corporation returns. -- The return of a
corporation shall be signed by the president, vice president,
treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act. In the case of a return
made for a corporation by a fiduciary, the fiduciary shall sign
the return. The fact that an individual's name is signed on the
return shall be prima facie evidence that such individual is
authorized to sign the return on behalf of the corporation.
(c) Signing of partnership returns. -- The return of a
partnership shall be signed by any one of the partners. The fact
that a partner's name is signed on the return shall be prima facie
evidence that such partner is authorized to sign the return on
behalf of the partnership.
(d) Signing of limited liability company returns. -- The
return of a limited liability company shall be signed by any one
of its authorized members. The fact that a member's name is
signed on the return shall be prima facie evidence that the member
is authorized to sign the return on behalf of the limited
liability company.
(e) Signature presumed authentic. -- The fact that an
individual's name is signed to a return, statement or other
document shall be prima facie evidence for all purposes that the
return, statement or other document was actually signed by him or
her.
(f) Verification of returns. -- Except as otherwise provided
by the tax commissioner, any return, declaration or other document
required to be made under this article shall contain or be
verified by a written declaration that it is made under the
penalties of perjury.
§11-13V-13. Bond of taxpayer may be required.
(a) Whenever it is deemed necessary to ensure compliance with
this article, the tax commissioner may require any taxpayer to
post a cash or corporate surety bond.
(b) The amount of the bond shall be fixed by the tax
commissioner but, except as provided in subsection (c) of this
section, shall not be greater than three times the average
quarterly liability of taxpayers filing returns for quarterly
periods, five times the average monthly liability of taxpayers
required to file returns for monthly periods, or two times the
average periodic liability of taxpayers permitted or required to
file returns for other than monthly or quarterly periods.
(c) Notwithstanding the provisions of subsection (b) of this
section, no bond required under this section shall be less than
five hundred dollars.
(d) The amount of the bond may be increased or decreased by
the tax commissioner at any time subject to the limitations
provided in this section.
(e) The tax commissioner may bring an action for a
restraining order or a temporary or permanent injunction to
restrain or enjoin the operation of a taxpayer's business until
the bond is posted and any delinquent tax, including applicable
interest and additions to tax has been paid. This action may be
brought in the circuit court of Kanawha County or in the circuit
court of any county having jurisdiction over the taxpayer.
§11-13V-14. Collection of tax; agreement for processor to pay tax due from severor.
(a) General. -- In the case of natural resources, other than
natural gas, where the tax commissioner finds that it would
facilitate and expedite the collection of the taxes imposed by
this article, the tax commissioner may authorize the taxpayer
processing the natural resource to report and pay the tax which
would be due from the taxpayer severing the natural resources.
The agreement shall be in the form prescribed by or acceptable to
the tax commissioner.
(1) The agreement must be signed:
(A) By the owner, if the taxpayer is a natural person;
(B) In the case of a partnership, limited liability company
or association, by a partner or member;
(C) In the case of a corporation, by an executive officer or
some person specifically authorized by the corporation to sign the
agreement.
(2) The agreement may be terminated by any party to the
agreement upon giving thirty days' written notice to the other
parties to the agreement: Provided, That the tax commissioner may
terminate the agreement immediately upon written notice to the
other parties when either the taxpayer processing the natural
resource or the taxpayer severing the natural resource fails to
comply with the terms of the agreement.
(b) Natural gas. --
(1) In the case of natural gas, except for those cases:
(A) Where the person severing (or both severing and processing) the natural gas will sell the gas to the ultimate
consumer, or
(B) Where the tax commissioner determines that the collection
of taxes due under this article would be accomplished in a more
efficient and effective manner through the severor, or severor and
processor, remitting the taxes, the first person to purchase the
natural gas after it has been severed, or in the event that the
natural gas has been severed and processed before the first sale,
the first person to purchase natural gas after it has been severed
and processed, shall be liable for the collection of the taxes
imposed by this article. That person shall collect the taxes
imposed from the person severing (or severing and processing) the
natural gas, and that person shall remit the taxes to the tax
commissioner.
(C) In those cases where the person severing (or severing and
processing) the natural gas sells the gas to the ultimate
consumer, the person so severing (or severing and processing) the
natural gas shall be liable for the taxes imposed by this article.
(D) In those cases where the tax commissioner determines that
the collection of the taxes due under this article from the person
severing the natural gas, or severing and processing the natural
gas would be accomplished in a more efficient and effective manner
through the severor (or severor and processor) remitting the
taxes, the tax commissioner shall set out his or her determination
in writing, stating his or her reasons for so finding, and so
advise the severor (or severor and processor) at least fifteen days in advance of the first reporting period for which the
commissioner's determination is effective.
(2) On or before the last day of the month following each
taxable calendar month, the person first purchasing natural gas,
as described in subdivision (1) of this subsection, shall report
purchases of natural gas during the taxable month, showing the
quantities of gas purchased, the price paid, the date of purchase,
and any other information considered necessary by the tax
commissioner for the administration of the tax imposed by this
article, and shall pay the amount of tax due, on forms prescribed
by the tax commissioner.
(3) On or before the last day of the month following each
taxable calendar month, each person severing (or severing and
processing) natural gas, shall report the sales of natural gas,
showing the name and address of the person to whom sold, the
quantity of gas sold, the date of sale, and the sales price on
forms prescribed by the tax commissioner.
§11-13V-15. Records.
(a) General. -- Every person liable for reporting or paying
tax under this article shall keep records, receipts, invoices and
other pertinent papers in the form required by the tax
commissioner.
(b) Period of retention. -- Every taxpayer shall keep the
records for a tax year for a period of not less than three years
after the annual return is filed under this article, unless the
tax commissioner, in writing, authorizes their earlier destruction. An extension of time for making an assessment
automatically extends the time period for keeping the records for
all years subject to audit covered in the agreement for extension
of time.
(c) Special rule for purchasers of standing timber or of
logs. -- In addition to the records required by subsection (a) of
this section, every person purchasing standing timber, logs or
wood products sawn or chipped in conjunction with a timber
harvesting operation in this state shall obtain from the person
from whom the standing timber, logs or wood products sawn or
chipped in conjunction with a timbering harvest operation are
purchased a true copy of the seller's then current business
registration certificate issued under article twelve of this
chapter or a copy of federal form 1099 for the year of the
purchase. When the seller is a person not required by this
chapter to have a business registration certificate, the purchaser
shall obtain an affidavit from the seller:
(1) Stating that the seller does not have a business
registration certificate and that the seller is not required by
this chapter to have a business registration certificate;
(2) Listing the seller's social security number or federal
employer identification number; and
(3) Listing the seller's current mailing address. The tax
commissioner may develop a form for this affidavit.
§11-13V-16. General procedure and administration.
Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten of this chapter
applies to the taxes imposed by this article, except as otherwise
expressly provided in this article, with like effect as if that
act were applicable only to the taxes imposed by this article and
were set forth in extenso in this article.
§11-13V-17. Crimes and penalties.
Each and every provision of the "West Virginia Tax Crimes and
Penalties Act" set forth in article nine of this chapter applies
to the taxes imposed by this article with like effect as if that
act were applicable only to the taxes imposed by this article and
were set forth in extenso in this article.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-96. Dedication of personal income tax proceeds.
(a) There is hereby dedicated an annual amount of forty-five
million dollars from annual collections of the tax imposed by this
article for payment of the unfunded liability of the current
workers compensation fund. No portion of this amount may be
pledged for payment of debt service on revenue bonds issued
pursuant to article two-d, chapter twenty-three of this code.
(b) Notwithstanding any other provision of this code to the
contrary, beginning in January of two thousand six, forty-five
million dollars from collections of the tax imposed by this
article shall be deposited each calendar year to the credit of the
old fund created in article two-c, chapter twenty-three of this
code, in accordance with the following schedule. Each calendar
month, except for July, August and September each year, five million dollars shall be transferred, on or before the twenty-
eighth day of the month, to the workers' compensation debt
reduction fund created in article two-d, chapter twenty-three of
this code.
(c) Expiration. -- The transfers required by this section
shall continue to be made until the governor certifies to the
Legislature that an independent actuary study determined that the
unfunded liability of the old fund, as defined in chapter twenty-
three of this code, has been paid or provided for in its entirety.
No transfer pursuant to this section shall be made thereafter.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
(a) The Legislature finds that a deficit exists in the
workers' compensation fund of such critical proportions that it
constitutes an imminent threat to the immediate and long-term
solvency of the fund and constitutes a substantial deterrent to
the economic development of this state. The Legislature further
finds that addressing the workers' compensation crisis requires
the efforts of all persons and entities involved and resolution
of the crisis is in the best interest of the public. Modification
to the rate system, alteration of the benefit structure,
improvement of current management practices and changes in
perception must be merged into a unified effort to make the
workers' compensation system viable and solvent through the
mutualization of the system and the opening of the market to private workers' compensation insurance carriers. It is was and
remains the intent of the Legislature that the amendments to this
chapter enacted in the year two thousand three be applied from the
date upon which the enactment is was made effective by the
Legislature. The Legislature finds that an emergency exists as
a result of the combined effect of this deficit, other state
budgetary deficits and liabilities and other grave social and
economic circumstances currently confronting the state and that
unless the changes provided by the enactment of the amendments to
this chapter, as well as other legislation designed to address the
problem are made effective immediately, the fiscal stability of
this state will suffer irreparable harm. Accordingly, the
Legislature finds that the need of the citizens of this state for
the protection of the state treasury and the solvency of the
workers' compensation funds requires the limitations on any
expectations that may have arisen from prior enactments of this
chapter.
(b) It is the further intent of the Legislature that this
chapter be interpreted so as to assure the quick and efficient
delivery of indemnity and medical benefits to injured workers at
a reasonable cost to the employers who are subject to the
provisions of this chapter. It is the specific intent of the
Legislature that workers' compensation cases shall be decided on
their merits and that a rule of "liberal construction" based on
any "remedial" basis of workers' compensation legislation shall
not affect the weighing of evidence in resolving such cases. The workers' compensation system in this state is based on a mutual
renunciation of common law rights and defenses by employers and
employees alike. Employees' rights to sue for damages over and
above medical and health care benefits and wage loss benefits are
to a certain degree limited by the provisions of this chapter and
employers' rights to raise common law defenses such as lack of
negligence, contributory negligence on the part of the employee,
and others, are curtailed as well. Accordingly, the Legislature
hereby declares that any remedial component of the workers'
compensation laws is not to cause the workers' compensation laws
to receive liberal construction that alters in any way the proper
weighing of evidence as required by section one-g, article four
of this chapter.
(c) The "workers' compensation division of the bureau of
employment programs" is, on or after the first day of October, two
thousand three, reestablished, reconstituted and continued as the
workers' compensation commission, an agency of the state. The
purpose of the commission is to ensure the fair, efficient and
financially stable administration of the workers' compensation
system of the state of West Virginia. The powers and duties
heretofore imposed upon the workers' compensation division and the
commissioner of the bureau of employment programs as they relate
to workers' compensation are hereby transferred to and imposed
upon the workers' compensation commission and its executive
director in the manner prescribed by this chapter.
(d) It is the intent of the Legislature that the transfer of the administration of the workers' compensation system of this
state from the workers' compensation division under the
commissioner of the bureau of employment programs to the workers'
compensation commission under its executive director and the
workers' compensation board of managers is to become effective the
first day of October, two thousand three. Any provisions of the
enactment of enrolled Senate bill no. 2013 in the year two
thousand three relating to the transfer of the administration of
the workers' compensation system of this state that conflict with
the intent of the Legislature as described in this subsection
shall, to that extent, become operative on the first day of
October, two thousand three, and until that date, prior enactments
of this code in effect on the effective date of enrolled Senate
bill no. 2013 relating to the administration of the workers'
compensation system of this state, whether amended and reenacted
or repealed by the passage of enrolled Senate bill no. 2013, have
full force and effect. All provisions of the enactment of
enrolled Senate bill no. 2013 in the year two thousand three
relating to matters other than the transfer of the administration
of the workers' compensation system of this state shall become
operative on the effective date of that enactment, unless
otherwise specifically provided for in that enactment.
§23-1-1a. Workers' compensation board of managers; appointment;
composition; qualifications; terms; chairperson;
meetings and quorum; compensation and travel
expenses; powers and duties.
(a) On the first day of October, two thousand three, the
compensation programs performance council heretofore established
in article three, chapter twenty-one-a of this code is hereby
abolished and there is hereby created the "workers' compensation
board of managers", which may also be referred to as "the board
of managers" or "the board".
(b) (1) The board shall consist of eleven voting members as
follows:
(A) The governor or his or her designee;
(B) The chief executive officer of the West Virginia
investment management board; if required to attend more than one
meeting per month, he or she may send a designee to the additional
meetings;
(C) The executive director of the West Virginia development
office; if required to attend more than one meeting per month, he
or she may send a designee to the additional meetings; and
(D) Eight members appointed by the governor with the advice
and consent of the Senate who meet the requirements and
qualifications prescribed in subsections (c) and (d) of this
section: Provided, That the members serving on the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code on the effective date of
the enactment of this section in two thousand three are hereby
appointed as members of the board of managers subject to the
provisions of subdivision (1), subsection (c) of this section.
(2) Two members of the West Virginia Senate and two members of the West Virginia House of Delegates shall serve as advisory
members of the board and are not voting members. The governor
shall appoint the legislative members to the board. No more than
three of the legislative members may be of the same political
party.
(c) (1) The initial eight appointed voting members of the
board of managers shall consist of the members appointed under the
provisions of paragraph (D), subdivision (1), subsection (a) of
this section and the remaining members appointed pursuant to the
provisions of subsection (d) of this section. The term of each
of the initial appointed members shall expire on the thirty-first
day of December, two thousand four five.
(2) Effective the first day of January, two thousand six, if
the commission continues, eight members shall be appointed by the
governor with the advice and consent of the Senate for terms that
begin the first day of January, two thousand five six, and expire
as follows:
Two members shall be appointed for a term ending the
thirtieth day of June, two thousand six seven;
Three members shall be appointed for a term ending the
thirtieth day of June, two thousand seven eight; and
Three members shall be appointed for a term ending the
thirtieth day of June, two thousand eight nine.
(3) Except for appointments to fill vacancies, each
subsequent appointment shall be for a term ending the thirtieth
day of June of the fourth year following the year the preceding term expired. In the event a vacancy occurs, it shall be filled
by appointment for the unexpired term. A member whose term has
expired shall continue in office until a successor has been duly
appointed and qualified. No member of the board may be removed
from office by the governor except for official misconduct,
incompetency, neglect of duty or gross immorality.
(4) No appointed member may be a candidate for or hold
elected office. Members may be reappointed for no more than two
full terms.
(d) Except for those initially appointed under the provisions
of paragraph (D), subdivision (1), subsection (a) of this section,
each of the appointed voting members of the board shall be
appointed based upon his or her demonstrated knowledge and
experience to effectively accomplish the purposes of this chapter.
They shall meet the minimum qualifications as follows:
(1) Each shall hold a baccalaureate degree from an accredited
college or university: Provided, That no more than three of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of fifteen years' experience in his or her field of
expertise as required in subdivision (2) of this subsection;
(2) Each shall have a minimum of ten years' experience in his
or her field of expertise. The governor shall consider the
following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in
insurance claims management; expertise in insurance underwriting; expertise in the financial management of pensions or insurance
plans; expertise as a trustee of pension or trust funds of more
than two hundred beneficiaries or three hundred million dollars;
expertise in workers' compensation management; expertise in loss
prevention and rehabilitation; expertise in occupational medicine
demonstrated by licensure as a medical doctor in West Virginia and
experience, board certification or university affiliation; or
expertise in similar areas of endeavor;
(3) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management
experience; and one shall be an academician holding an advanced
degree from an accredited college or university in business,
finance, insurance or economics.
(e) Each member of the board shall have a fiduciary
responsibility to the commission and all workers' compensation
funds and shall assure the proper administration of the funds in
a fiscally responsible manner.
(f) The board shall elect one member to serve as chairperson.
The chairperson shall serve for a one-year term and may serve more
than one consecutive term. The board shall hold meetings at the
request of the chairperson or at the request of at least three of
the members of the board, but no less frequently than once every
three months. The chairperson shall determine the date and time
of each meeting. Six members of the board constitute a quorum for
the conduct of the business of the board. No vacancy in the membership of the board shall impair the right of a quorum to
exercise all the rights and perform all the duties of the board.
No action shall be taken by the board except upon the affirmative
vote of six members of the board.
(g) Notwithstanding any provision of article seven, chapter
six of this code to the contrary, the board shall establish the
salary of the executive director. The board shall establish a set
of performance measurements to evaluate the performance of the
executive director in fulfilling his or her duties as prescribed
in this chapter and shall annually rate the executive director's
performance according to the established measurements and may
adjust his or her annual salary in accordance with that
performance rating.
(h) (1) Each voting appointed member of the board shall
receive compensation of not more than three hundred fifty dollars
per day for each day during which he or she is required to and
does attend a meeting of the board.
(2) Each voting appointed member of the board is entitled to
be reimbursed for actual and necessary expenses incurred for each
day or portion thereof engaged in the discharge of official duties
in a manner consistent with guidelines of the travel management
office of the department of administration.
(i) Each member of the board shall be provided appropriate
liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board
of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
(j) The board of managers shall:
(1) Review and approve, reject or modify recommendations from
the executive director for the development of overall policy for
the administration of this chapter;
(2) In consultation with the executive director, propose
legislation and establish operating guidelines and policies
designed to ensure the effective administration and financial
viability of the workers' compensation system of West Virginia;
(3) Review and approve, reject or modify rules that are
proposed by the executive director for operation of the workers'
compensation system before the rules are filed with the secretary
of state. The rules adopted by the board are not subject to
sections nine through sixteen, inclusive, article three, chapter
twenty-nine-a of this code. The board shall follow the remaining
provisions of said chapter for giving notice to the public of its
actions and for holding hearings and receiving public comments on
the rules;
(4) In accordance with the laws, rules and regulations of
West Virginia and the United States government, establish and
monitor performance standards and measurements to ensure the
timeliness and accuracy of activities performed under the workers'
compensation laws and rules;
(5) Review and approve, reject or modify all classifications
of occupations or industries, premium rates and taxes,
administrative charges, rules and systems of rating, rating plans, rate revisions, deficit management and deficit reduction
assessments and merit rating for employers covered by this
chapter. The executive director shall provide all information
required for the board's review;
(6) In conjunction with the executive director initiate,
oversee and review all independent financial and actuarial reviews
of the commission. The board shall employ an internal auditor for
the purpose of examining internal compliance with the provisions
of this chapter. The internal auditor shall be employed directly
by the board. The internal auditor shall submit copies of all
reports prepared by the internal auditor for the board to the
joint committee on government and finance within five days of
submitting or making the report to the board, by filing the report
with the legislative librarian;
(7) Approve the allocation of sufficient administrative
resources and funding to efficiently operate the workers'
compensation system of West Virginia. To assure efficient
operation, the board shall direct the development of a plan for
the collections performed under section five-a, article two of
this chapter. The plan for collections shall maximize ratio of
dollars potentially realized by the collection proceeding to the
dollars invested in collection activity;
(8) Review and approve, reject or modify the budget prepared
by the executive director for the operation of the commission.
The budget shall include estimates of the costs and necessary
expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices,
furniture, equipment and supplies to all commission officers and
employees;
(9) In consultation with the executive director, approve the
designation of health care providers to make decisions for the
commission regarding appropriateness of medical services;
(10) Require the workers' compensation commission to develop,
maintain and use an effective program of return-to-work services
for employers and workers;
(11) Require the workers' compensation commission to develop,
maintain and use thorough and efficient claims management
procedures and processes and fund management in accordance with
the generally accepted practices of the workers' compensation
insurance industry;
(12) Consider such other matters regarding the workers'
compensation system as the governor, executive director or any
member of the board may desire;
(13) Review and approve, reject or modify standards
recommended by the executive director to be considered by the
commission in making decisions on all levels of disability awards.
The standards should be established as an effective means to make
prompt, appropriate decisions relating to medical care and methods
to assist employees to return to work as quickly as possible;
(14) Appoint, if necessary, a temporary executive director;
(15) Employ sufficient professional and clerical staff to
carry out the duties of the board. Employees of the board shall serve at the will and pleasure of the board. The board's
employees are exempt from the salary schedule or pay plan adopted
by the division of personnel; and
(16) Study the feasibility of, provide a plan for and provide
a proposal for a request for proposals from the private sector
for, privatizing the workers' compensation system of this state,
including, but not limited to, a plan for privatizing the
administration of the workers' compensation system of this state
and a plan for allowing employers to obtain private insurance to
insure their obligations under the workers' compensation system
of this state; study the effect, if any, of attorneys fees on the
cost of administering the workers' compensation system; study the
extent to which fraud or abuse on the part of employees, providers
and others have an effect on the cost of administering the
workers' compensation system; study the extent, if any, that the
rates and amounts of disability awards exceed the rates and
amounts of such awards in other states; study the comparative
desirability of alternative permanent disability administration
in those other states, and alternative deficit management
strategies, including nontraditional funding; study the
feasibility of authorizing a plan of multiple rate classifications
by individual employers for employers who have different or
seasonally diverse job classifications and duties: Provided, That
no such plan may be implemented until adopted by the Legislature;
and, in consultation with the director of the division of
personnel, study the feasibility of establishing a work incentive program to place unemployed qualified recipients of workers'
compensation benefits in state or local government employment.
On or before the first day of January, two thousand six, the
commission shall report the findings and conclusions of each
study, the plans and proposals, and any recommendations the
commission may have as a result of the study to the joint
committee on government and finance.
(17) Complete all duties set forth in article two-c of this
chapter.
(k) The board of managers shall continue to exist pursuant to
this article until the commission is terminated pursuant to the
provisions of this chapter.
§23-1-1b. Executive director; qualifications; oath; seal;
removal; powers and duties.
(a) The executive director shall be hired by the board of
managers for a term not to exceed five years and may be retained
based on overall performance for additional terms: Provided, That
the executive director of the division of workers' compensation
on the date of the enactment of this section in the year two
thousand three shall serve as the initial executive director of
the commission and shall receive the same salary and benefits as
received as the executive director of the division of workers'
compensation through and until the board of managers establishes
his or her salary and benefits as the executive director of the
commission. The position of executive director shall be full-time
employment. Except for the initial executive director, candidates for the position of executive director shall have a minimum of a
bachelor of arts or science degree from an accredited four-year
college or university in one or more of the following disciplines:
Finance; economics; insurance administration; law; public
administration; accounting; or business administration.
Candidates for the position of executive director will be
considered based on their demonstrated education, knowledge and
a minimum of ten years' experience in the areas of workers'
compensation, insurance company management, administrative and
management experience with an organization comparable in size to
the workers' compensation commission or any relevant experience
which demonstrates an ability to effectively accomplish the
purposes of this chapter.
(b) The executive director shall not be a candidate for or
hold any other public office or trust, nor shall he or she be a
member of a political committee. If he or she becomes a candidate
for a public office or becomes a member of a political committee,
his or her office as executive director shall be immediately
vacated.
(c) The executive director, before entering upon the duties
of his or her office, shall take and subscribe to the oath
prescribed by section five, article IV of the state constitution.
The oath shall be filed with the secretary of state.
(d) The executive director shall have an official seal for
the authentication of orders and proceedings, upon which seal
shall be engraved the words "West Virginia Workers' Compensation Commission" and any other design prescribed by the board of
managers. The courts in this state shall take judicial notice of
the seal of the commission and in all cases copies of orders,
proceedings or records in the office of the West Virginia workers'
compensation commission are equal to the original in evidence.
(e) The executive director shall not be a member of the board
of managers.
(f) The executive director shall serve until the expiration
of his or her term, resignation or until removed by a two-thirds
vote of the full board of managers. The board of managers and the
executive director may, by agreement, terminate the term of
employment at any time.
(g) The executive director shall have overall management
responsibility and administrative control and supervision within
the workers' compensation commission and has the power and duty
to:
(1) Establish, with the approval of the board of managers,
the overall administrative policy of the commission for the
purposes of this chapter;
(2) Employ, direct and supervise all employees required in
the connection with the performance of the duties assigned to the
commission by this chapter and fix the compensation of the
employees in accordance with the provisions of article six,
chapter twenty-nine of this code: Provided, That the executive
director shall identify which members of the staff of the workers'
compensation commission shall be exempted from the salary schedules or pay plan adopted by the state personnel board and
further identify such staff members by job classification or
designation, together with the salary or salary ranges for each
such job classification or designation and shall file this
information with the director of the division of personnel no
later than the thirty-first day of December, two thousand three,
and thereafter as changes are made or at least annually:
Provided, however, That, effective the first day of July, two
thousand six, if the commission has not been terminated or
otherwise discontinued, all employees of the commission shall be
exempt and otherwise not under the jurisdiction of the provisions
of the statutes, rules and regulations of the classified service
set forth in article six, chapter twenty-nine of this code and
article six-a of said chapter and are afforded no protections,
rights or access to procedures set forth in said provision. All
commission employees shall be employees at will unless his or her
employment status is altered by an express, written employment
contract executed on behalf of the commission and the employee.
The commission and its employees shall be exempt and otherwise not
under the jurisdiction of the state personnel board, the
department of personnel, or any other successor agency, and their
statutes, rules and regulations;
(3) Reorganize the work of the commission, its divisions,
sections and offices to the extent necessary to achieve the most
efficient performance of its functions. All persons employed by
the workers' compensation division in positions that were formerly supervised and directed by the commissioner of the bureau of
employment programs under chapter twenty-one-a of this code are
hereby assigned and transferred in their respective
classifications to the workers' compensation commission effective
the first day of October, two thousand three. Further, the
executive director may select persons that are employed by the
bureau of employment programs on the effective date of the
enactment of this section in the year two thousand three to be
assigned and transferred to the workers' compensation commission
in their respective classifications, such assignment and transfer
to take effect no later than the thirty-first day of December, two
thousand three. Employees in the classified service who have
gained permanent status as of the effective date of this article
will not be subject to further qualifying examination in their
respective classifications by reason of any transfer required by
the provisions of this subdivision. Due to the emergency
currently existing at the commission and the urgent need to
develop fast, efficient claims processing, management and
administration, the executive director is hereby granted authority
to reorganize internal functions and operations and to delegate,
assign, transfer, combine, establish, eliminate and consolidate
responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of
personnel shall cooperate fully by assisting in all personnel
activities necessary to expedite all changes for the commission.
The executive director is hereby granted authority to reorganize internal functions and operations and to delegate, assign,
transfer, combine, establish, eliminate and consolidate
responsibilities and duties to and among the positions transferred
under the authority of this subdivision. The division of personnel
shall cooperate fully by assisting in all personnel activities
necessary to expedite all changes for the commission and shall
otherwise continue to provide all necessary administrative support
to the commission in connection with the commission's personnel
needs until the company established in article two-c of this
chapter becomes operational. Nothing contained in this
subdivision shall be construed to either abridge the rights of
employees within the classified service of the state to the
procedures and protections set forth in article six, chapter
twenty-nine of this code or to preclude the reclassification or
reallocation of positions in accordance with procedures set forth
in said article;
(4) Exempt no more than twenty-five of any of the newly
created positions from the classified service of the state, the
employees of which positions shall serve at the will and pleasure
of the executive director. The executive director shall report
all exemptions made under this subdivision to the director of the
division of personnel no later than the first day of January, two
thousand four, and thereafter as the executive director determines
to be necessary;
(5) With the advice and approval of the board of managers,
propose operating guidelines and policies to standardize administration, expedite commission business and promote the
efficiency of the services provided by the commission;
(6) Prepare and submit to the board of managers information
the board requires for classifications of occupations or
industries; the basis for premium rates, taxes, surcharges and
assessment for administrative charges, for assessments related to
loss experience, for assessments of prospective risk exposure, for
assessments of deficit management and deficit reduction costs
incurred, for other deficit management and deficit reduction
assessments, for rules and systems of rating, rate revisions and
merit rating for employers covered by this chapter; and
information regarding the extent, degree and amount of
subsidization between the classifications. The executive director
shall obtain, prepare and submit any other information the board
of managers requires for the prompt and efficient discharge of its
duties;
(7) Keep accurate and complete accounts and records necessary
to the collection, administration and distribution of the workers'
compensation funds;
(8) Sign and execute in the name of the state, by "The
Workers' Compensation Commission", any contract or agreement;
(9) Make recommendations and an annual report to the governor
concerning the condition, operation and functioning of the
commission;
(10) Invoke any legal or special remedy for the enforcement
of orders or the provisions of this chapter;
(11) Prepare and submit for approval to the board of managers
a budget for each fiscal year, including estimates of the costs
and necessary expenditures of the commission in the discharge of
all duties imposed by this chapter as well as the costs of
furnishing office space to the officers and employees of the
commission;
(12) Ensure that all employees of the commission follow the
orders, operating guidelines and policies of the commission as
they relate to the commission's overall policy-making, management
and adjudicatory duties under this chapter;
(13) Delegate all powers and duties vested in the executive
director to his or her appointees and employees; but the executive
director is responsible for their acts;
(14) Provide at commission expense a program of continuing
professional, technical and specialized instruction for the
personnel of the commission. The executive director shall consult
with and report at least annually to the legislative oversight
commission on workforce investment for economic development to
obtain the most appropriate training using all available
resources;
(15) (A) Contract or employ counsel to perform all legal
services for the commission including, but not limited to,
representing the executive director, board of managers and
commission in any administrative proceeding and in any state or
federal court. Additionally, the commission may, but shall not
be required to, call upon the attorney general for legal assistance and representation as provided by law. The attorney
general shall not approve or exercise authority over in-house
counsel or contract counsel hired pursuant to this section;
(B) In addition to the authority granted by this section to
the executive director and notwithstanding any provision to the
contrary elsewhere in this code, use any attorney regularly
employed by the commission or the office of the attorney general
to represent the commission, the executive director or the board
of managers in any matter arising from the performance of its
duties or the execution of its powers under this chapter. In
addition, the executive director, with the approval of the board
of managers, may retain counsel for any purpose in the
administration of this chapter relating to the collection of any
amounts due from employers to the commission: Provided, That the
allocation of resources for the purpose of any collections shall
be pursuant to the plan developed by the board of managers. The
board of managers shall solicit proposals from counsel who are
interested in representing the commission under the terms of this
subdivision. Thereafter, the board of managers shall select any
attorneys it determines necessary to pursue the collection
objectives of this subdivision:
(i) Payment to retained counsel may either be hourly or by
other fixed fee, or as determined by the court or administrative
law judge as provided for in this section. A contingency fee
payable from the amount recovered by judgment or settlement for
the commission is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are
depleted so that a full recovery plus attorneys' fees is not
possible;
(ii) In the event that any collections action, other than a
collections action against a claimant, initiated either by
retained counsel or other counsel on behalf of the commission
results in a judgment or settlement in favor of the commission,
the court or, if there was no judicial component to the action,
the administrative law judge, shall determine the amount of
attorneys' fees that shall be paid by the defendants or
respondents to the retained or other counsel representing the
commission. If the court is to determine the amount of attorneys'
fees, it shall include in its determination the amount of fee that
should be paid for the representation of the commission in
pursuing the administrative component, if any, of the action. The
amount so paid shall be fixed by the court or the administrative
law judge in an amount no less than twenty percent of its
recovery. Any additional amount of attorneys' fees shall be
determined by use of the following factors:
(I) The counsel's normal hourly rate or, if the counsel is an
employee of the commission or is an employee of the office of the
attorney general, an hourly rate the court or the administrative
law judge determines to be customary based upon the attorney's
experience and skill level;
(II) The number of hours actually expended on the action;
(III) The complexity of the issues involved in the action;
(IV) The degree of risk involved in the case with regard to
the probability of success or failure;
(V) The overhead costs incurred by counsel with regard to the
use of paralegals and other office staff, experts and
investigators; and
(VI) The public purpose served or public objective achieved
by the attorney in obtaining the judgment or settlement on behalf
of the commission;
(iii) Notwithstanding the provisions of paragraph (B) of this
subdivision, if the commission and the defendants or respondents
to any administrative or judicial action settle the action, the
parties may negotiate a separate settlement of attorneys' fees to
be paid by the defendants or respondents above and beyond the
amount recovered by the commission. In the event that a
settlement of attorneys' fees is made, it must be submitted to the
court or administrative law judge for approval;
(iv) Any attorney regularly employed by the commission or by
the office of the attorney general may not receive any
remuneration for his or her services other than the attorney's
regular salary. Any attorneys' fees awarded for an employed
attorney are payable to the commission;
(16) Propose rules for promulgation by the board of managers
under which agencies of this state shall revoke or refuse to
grant, issue or renew any contract, license, permit, certificate
or other authority to conduct a trade, profession or business to
or with any employing unit whose account is in default with the commission with regard to the administration of this chapter. The
term "agency" includes any unit of state government such as
officers, agencies, divisions, departments, boards, commissions,
authorities or public corporations. An employing unit is not in
default if it has entered into a repayment agreement with the
commission and remains in compliance with its obligations under
the repayment agreements;
(A) The rules shall provide that, before granting, issuing or
renewing any contract, license, permit, certificate or other
authority to conduct a trade, profession or business to or with
any employing unit, the designated agencies shall review a list
or lists provided by the commission of employers that are in
default. If the employing unit's name is not on the list, the
agency, unless it has actual knowledge that the employing unit is
in default with the commission, may grant, issue or renew the
contract, license, permit, certificate or other authority to
conduct a trade, profession or business. The list may be provided
to the agency in the form of a computerized database or databases
that the agency can access. Any objections to the refusal to
issue or renew shall be reviewed under the appropriate provisions
of this chapter. The prohibition against granting, issuing or
renewing any contract, license, permit, certificate or other
authority under this subdivision shall remain in full force and
effect as promulgated under section six, article two, chapter
twenty-one-a of this code until the rules required by this
subsection are promulgated and in effect;
(B) The rules shall also provide a procedure allowing any
agency or interested person, after being covered under the rules
for at least one year, to petition the commission to be exempt
from the provisions of the rules;
(17) Deposit to the credit of the appropriate special revenue
account or fund, notwithstanding any other provision of this code
and to the extent allowed by federal law, all amounts of
delinquent payments or overpayments, interest and penalties
thereon and attorneys' fees and costs collected under the
provisions of this chapter. The amounts collected shall not be
treated by the auditor or treasurer as part of the general revenue
of the state;
(18) Recommend for approval of the board of managers rules
for the administration of claims management by self-insured
employers and third-party administrators including regulation and
sanctions for the rejection of claims and for maintaining claim
records and ensuring access to all claim records by interested
claimants, claimant representatives, the commission and the office
of judges;
(19) Recommend for approval of the board of managers, rules
to eliminate the ability of an employer to avoid an experience
modification factor by virtue of a reorganization of a business;
(20) Submit for approval of the board of managers rules
setting forth procedures for auditing and investigating employers,
including employer premium audits and including auditing and
investigating programs of self-insured employers and third-party administrators, employees, health care providers and medical and
vocational rehabilitation service providers;
(21) Regularly audit and monitor programs established by
self-insured or third-party administrators under this chapter to
ensure compliance with the commission's rules and the law;
(22) Establish and maintain a fraud and abuse Facilitate the
transfer of the fraud investigation and prosecution unit; along
with the assets necessary to support the functions being
performed, to the insurance commissioner. This transfer shall be
to be completed by the first day of July, two thousand five. This
unit has the responsibility and authority for investigating and
controlling fraud and abuse of the workers' compensation system
of the state of West Virginia. The fraud and abuse unit shall be
under the supervision of an inspector general, who shall be
appointed by the executive director of the workers' compensation
commission insurance commissioner. Nothing in this section shall
preclude the commission or, when applicable, the company created
in article two-c of this chapter and other private carriers, from
independently investigating and controlling abuse and exercising
the powers granted to the commission to address and eliminate
abuse under this chapter. The executive director may select
persons that are assigned to the fraud and abuse unit on the
effective date of the enactment of this section to be assigned and
remain employees of the workers' compensation commission. The
commission shall determine its fiscal year two thousand six budget
for the fraud investigation and prosecution unit and shall make advanced quarterly payments to the insurance commissioner during
fiscal year two thousand six for the actual operational expenses
incurred as a direct result of this transfer: Provided, That the
payments and expenses shall be reconciled prior to the final
fiscal year transfer and any unexpended amount shall be deducted
from the final quarter's payment. This reimbursement methodology
shall repeat for fiscal year two thousand seven. Any amounts
transferred under this section to the insurance commissioner shall
be appropriated by the Legislature. The commission's inspector
general shall serve as the initial inspector general for the
insurance commissioner;
(A) The inspector general shall, with the consent and advice
of the executive director, employ all personnel as necessary for
the institution, development and finalization of procedures and
investigations which serve to ensure that only necessary and
proper workers' compensation benefits and expenses are paid to or
on behalf of injured employees and to insure employers subscribe
to and pay the proper premium to the West Virginia workers'
compensation commission. Qualification, compensation and
personnel practice relating to the employees of the fraud and
abuse unit, including that of the position of inspector general,
shall be governed by the provisions of the statutes, and rules and
regulations of the classified service pursuant to article six,
chapter twenty-nine of this code. The inspector general shall
supervise all personnel, which collectively shall be referred to
in this chapter as the fraud and abuse unit;
(B) The fraud and abuse unit shall have the following powers
and duties:
(i) The fraud and abuse unit shall propose for promulgation
by the board of managers rules for determining the existence of
fraud and abuse as it relates to the workers' compensation system
in West Virginia;
(ii) The fraud and abuse unit will be responsible for the
initiation, development, review and proposal for promulgation by
the board of managers of rules regarding the existence of fraud
and abuse as it relates to the workers' compensation system in
West Virginia;
(iii) The fraud and abuse unit will take action to identify
and prevent and discourage any and all fraud and abuse;
(iv) The fraud and abuse unit, in cases of criminal fraud,
has the authority to review and prosecute those cases for
violations of sections twenty-four-e, twenty-four-f, twenty-four-g
and twenty-four-h, article three, chapter sixty-one of this code,
as well as any other criminal statutes that may be applicable.
In addition the fraud and abuse unit not only has the authority
to prosecute and refer cases involving criminal fraud to
appropriate state authorities for prosecution, but it also has the
authority, and is encouraged, to cooperate with the appropriate
federal authorities for review and possible prosecution, by either
state or federal agencies, of cases involving criminal fraud
concerning the workers' compensation system in West Virginia;
(v) The fraud and abuse unit, in cases which do not meet the definition of criminal fraud, but would meet a reasonable person's
definition of an abuse of the workers' compensation system, shall
take the appropriate action to discourage and prevent such abuse.
Furthermore, the fraud and abuse unit shall assist the commission
to develop evidence of fraud or abuse which can be used pursuant
to the provisions of this chapter to suspend, and where
appropriate, terminate, a claimant's benefits. In addition,
evidence developed pursuant to these provisions can be used in
hearings before the office of judges on protests to commission
decisions terminating, or not terminating, temporary total
disability benefits; and
(vi) The fraud and abuse unit, is expressly authorized to
initiate investigations and participate in the development of, and
if necessary, the prosecution of any health care provider,
including a provider of rehabilitation services, alleged to have
violated the provisions of section three-c, article four of this
chapter;
(C) Specific personnel, designated by the inspector general,
shall be permitted to operate vehicles owned or leased for the
state displaying Class A registration plates;
(D) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the inspector general
may carry handguns in the course of their official duties after
meeting specialized qualifications established by the governor's
committee on crime, delinquency and correction, which
qualifications shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia
state police: Provided, That nothing in this subsection shall be
construed to include the personnel so designated by the inspector
general to carry handguns within the meaning of the term
law-enforcement official as defined in section one, article
twenty-nine, chapter thirty of this code;
(E) The fraud and abuse unit is not subject to any
requirement of article nine-a, chapter six of this code and the
investigations conducted by the fraud and abuse unit and the
materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code;
(F) In the event that a final judicial decision adjudges that
the statewide prosecutorial powers vested by this subdivision in
the fraud and abuse unit may only be exercised by a public
official other than an employee of the fraud and abuse unit, then
to that extent the provisions of this subdivision vesting
statewide prosecutorial power shall thenceforth be of no force and
effect, the remaining provisions of this subdivision shall
continue in full force and effect and prosecutions hereunder may
only be exercised by the prosecuting attorneys of this state and
their assistants or special assistant prosecuting attorneys
appointed as provided by law;
(23) Enter into interagency agreements to assist in
exchanging information and fulfilling the default provisions of
this chapter;
(24) Notwithstanding any provision of this code to the
contrary, the executive director, under emergency authorization:
(A) May expend up to fifty thousand dollars for purchases of
and may contract for goods and services without securing
competitive bids. This emergency spending authority expires on
the first day of July, two thousand five; and
(B) May expend such sums as the executive director determines
are necessary for professional services, contracts for the
purchase of an automated claims administration system and
associated computer hardware and software in the administration
of claims for benefits made under provisions of this chapter and
contracts for technical services and related services necessary
to develop, implement and maintain the system and associated
computer hardware and software. The provisions of article three,
chapter five-a of this code relating to the purchasing division
of the department administration shall not apply to these
contracts. The director shall award the contract or contracts on
a competitive basis. This emergency spending authority expires
on the thirty-first day of December, two thousand six;
(25) Establish an employer violator system to identify
individuals and employers who are in default or are delinquent on
any premium, assessment, surcharge, tax or penalty owed to the
commission. The employer violator system shall prohibit violators
who own, control or have a ten percent or more ownership interest,
or other ownership interest as may be defined by the commission,
in any company from obtaining or maintaining any license, certificate or permit issued by the state until the violator has
paid all moneys owed to the commission or has entered into and
remains in compliance with a repayment agreement;
(26) Propose the designation of health care providers to make
decisions for the commission regarding appropriateness of medical
services; and
(27) Study the correlation between premium tax merit rating
for employers and the safety performance of employers. This study
shall be completed prior to the first day of July, two thousand
four, and the results thereof provided to the board of managers.
(28) Upon termination of the commission, accomplish the
transfer to the insurance commissioner established in article two-
c of this chapter, the insurance commissioner, and any other
applicable state agency or department, of the functions necessary
for the regulation of the workers' compensation insurance
industry, including, but not limited to, the following commission
functions: rate making, self-insurance, office of judges and board
of review. The executive director may select persons that are
assigned to these functions on the effective date of the enactment
of this section to be assigned and become employees of the company
as established in article two-c of this chapter. The executive
director may, in consultation with the insurance commissioner,
select persons that are assigned to the insurance commissioner.
The commission shall determine its fiscal year two thousand six
budget for each of these functions, reduce the budget amount
attributable to self-insured employers for these functions and shall make advanced quarterly payments to the insurance
commissioner during fiscal year two thousand six for the actual
operational expenses incurred as a direct result of this transfer.
The amount shall include the funds necessary to operate the
industrial council and the insurance commissioner shall be
administratively responsible for the industrial council's budget:
Provided, That the payments and expenses shall be reconciled prior
to the final fiscal year transfer and any unexpended amount shall
be deducted from the final quarter's payment. This reimbursement
methodology shall repeat for fiscal year two thousand seven. Any
amounts transferred under this section to the insurance
commissioner shall be appropriated by the Legislature. For the
final calendar quarter of two thousand five and the first and
second calendar quarters of the year two thousand six, all self-
insured employers shall remit to the insurance commissioner on a
quarterly basis the administrative component of their fiscal year
two thousand six rate. For the fiscal year beginning the first
day of July, two thousand six, self-insured employers shall remit
an administrative charge to the insurance commissioner in an
amount determined by the commissioner. All self-insured employer
advance deposits shall transfer from the commission to the
insurance commissioner upon termination of the commission.
(29) Perform all duties set forth in article two-c of this
chapter.
§23-1-1c. Payment withholding; interception; penalty.
(a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia
or any political subdivision thereof shall withhold payment in the
final settlement of contracts until the receipt of a certificate
from the commission or the company created in article two-c of
this chapter to the effect that all payments, interest and
penalties thereon accrued against the contractor under this
chapter as of the termination of the commission have been paid or
that provisions satisfactory to the commission or company created
in article two-c of this chapter have been made for payment. Any
official violating this subsection is guilty of a misdemeanor and,
on conviction thereof, shall be fined not more than one thousand
dollars or confined in the county or regional jail for not more
than one year, or both fined and confined.
(b) Any agency of the state, for the limited purpose of
intercepting, pursuant to section five-a, article two of this
chapter, any payment by or through the state to an employer who
is in default in payment of contributions, premiums, deposits,
interest or penalties under the provisions of this chapter, shall
assist the commission or company created in article two-c of this
chapter in collecting the payment that is due under subsection (a)
of this section. For this purpose, disclosure of joint delinquency
and default lists of employers with respect to unemployment
compensation as provided in section six-c, article one, chapter
twenty-one-a of this code and workers' compensation contributions,
premiums, interest, deposits or penalties is authorized. The
commission and the bureau of employment programs may enter into an interagency agreement to effect the provisions of this section.
The lists may be in the form of a computerized database to be
accessed by the auditor, the department of tax and revenue, the
department of administration, the division of highways or other
appropriate state agency or officer.
§23-1-1e. Transfer of assets and contracts; ability to acquire,
own, lease and otherwise manage property.
(a) With the establishment of the workers' compensation
commission, all assets and contracts, along with rights and
obligations thereunder, obtained or signed on behalf of the
workers' compensation division of the bureau of employment
programs in furtherance of the purposes of this chapter, are
hereby transferred and assigned to the workers' compensation
commission.
(b) From the termination of the commission through the
thirtieth day of June, two thousand eight, the company may
continue to contract and exchange data and information with the
office of information, services and communication, the bureau of
employment programs, the department of motor vehicles, various
child support enforcement agencies and other similar state
agencies and entities in a manner similar to the commission to
accomplish the intent of this chapter.
§23-1-1g. Legislative intent to create a quasi-public entity.
In recognition of the impact a state's workers' compensation
premium levels may have on the state's ability to conduct economic
development, and the resulting need to operate the state's workers' compensation system in such a manner that will enable the
lowest premiums to be charged employers while at the same time
ensuring adequate benefit levels are provided to injured workers,
it is the intent of the Legislature that the workers' compensation
commission remain a commission of the state as provided in article
two, chapter five-f of this code until the company created in
article two-c of this chapter is created and operational and the
new fund created in article two-c of this chapter has been funded.
Until the termination of the commission, and in order for the
commission to be able to capture the efficiencies associated with
private sector operations, the workers' compensation commission
is exempt from the provisions of the following effective upon the
date upon which this enactment is made effective by the
Legislature:
(a) Article three, chapter five-a, related to the department
of administration purchasing division; and
(b) Section eleven, article three, chapter twelve, relating
to appropriations, expenditures and deductions.
§23-1-11. Depositions; investigations.
(a) In an investigation into any matter arising under
articles one through five, inclusive, of this chapter, the
commission may cause depositions of witnesses residing within or
without the state to be taken in the manner prescribed by law for
like depositions in the circuit court, but the depositions shall
be upon reasonable notice to claimant and employer or other
affected persons or their respective attorneys. The commission shall designate the person to represent it for the taking of the
deposition.
(b) The commission also has discretion to accept and consider
depositions taken within or without the state by either the
claimant or employer or other affected person, provided due and
reasonable notice of the taking of the depositions was given to
the other parties or their attorneys, if any: Provided, That the
commission, upon due notice to the parties, has authority to
refuse or permit the taking of depositions or to reject the
depositions after they are taken, if they were taken at a place
or under circumstances which imposed an undue burden or hardship
upon the other parties. The commission's discretion to accept,
refuse to approve or reject the depositions is binding in the
absence of abuse of the discretion.
(c) The powers and duties set forth in the section shall be
transferred from the workers' compensation commission to the
insurance commissioner upon termination of the commission.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric and
psychological reports and providing summaries
thereof.
(a) The workers' compensation commission shall adopt
reasonable and proper rules of procedure, regulate and provide for
the kind and character of notices, and the service of the notices,
in cases of accident and injury to employees, the nature and
extent of the proofs and evidence, the method of taking and furnishing of evidence to establish the rights to benefits or
compensation from the fund hereinafter provided for, or directly
from employers as hereinafter provided, as the case may require,
and the method of making investigations, physical examinations and
inspections and prescribe the time within which adjudications and
awards shall be made.
(b) At hearings and other proceedings before the commission
or before the duly authorized representative of the commission,
an employer who is a natural person may appear, and a claimant may
appear, only as follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0 - admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a representative from a labor organization who has
been recognized by the commission as being qualified to represent
a claimant or who is an individual otherwise found to be qualified
by the commission to act as a representative. The representative
shall participate in the presentation of facts, figures and
factual conclusions as distinguished from the presentation of
legal conclusions in respect to the facts and figures; or
(4) Pro se.
(c) At hearings and other proceedings before the commission
or before the duly authorized representative of the commission,
an employer who is not a natural person may appear only as
follows:
(1) By an attorney duly licensed and admitted to the practice
of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0 - admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a member of the board of directors of a corporation or
by an officer of the corporation for purposes of representing the
interest of the corporation in the presentation of facts, figures
and factual conclusions as distinguished from the presentation of
legal conclusions in respect to the facts and figures; or
(4) By a representative from an employer service company who
has been recognized by the commission as being qualified to
represent an employer or who is an individual otherwise found to
be qualified by the commission to act as a representative. The
representative shall participate in the presentation of facts,
figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to the facts and
figures.
(d) The commission or its representative may require an individual appearing on behalf of a natural person or corporation
to produce satisfactory evidence that he or she is properly
qualified and authorized to appear pursuant to this section.
(e) Subsections (b), (c) and (d) of this section shall not be
construed as being applicable to proceedings before the office of
judges pursuant to the provisions of article five of this chapter.
(f) At the direction of a treating or evaluating psychiatrist
or clinical doctoral-level psychologist, a psychiatric or
psychological report concerning a claimant who is receiving
treatment or is being evaluated for psychiatric or psychological
problems may be withheld from the claimant. In that event, a
summary of the report shall be compiled by the reporting
psychiatrist or clinical doctoral-level psychologist. The summary
shall be provided to the claimant upon his or her request. Any
representative or attorney of the claimant must agree to provide
the claimant with only the summary before the full report is
provided to the representative or attorney for his or her use in
preparing the claimant's case. The report shall only be withheld
from the claimant in those instances where the treating or
evaluating psychiatrist or clinical doctoral-level psychologist
certifies that exposure to the contents of the full report is
likely to cause serious harm to the claimant or is likely to cause
the claimant to pose a serious threat of harm to a third party.
(g) In any matter arising under articles one through five,
inclusive, of this chapter in which the commission is required to
give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other
representative is sufficient notice to the party represented.
(h) The powers and duties set forth in the section shall be
transferred from the workers' compensation commission to the
insurance commissioner upon termination of the commission.
§23-1-14. Forms.
The commission shall prepare and furnish free of cost forms
(and provide in his or her rules for their distribution so that
they may be readily available) of applications for benefits for
compensation from the workers' compensation fund, or directly from
employers, as the case may be, notices to employers, proofs of
injury or death, of medical attendance, of employment and wage
earnings, and any other forms considered proper and advisable.
It is the duty of employers to constantly keep on hand a
sufficient supply of the forms. The powers and duties set forth
in the section shall be transferred from the workers' compensation
commission to the insurance commissioner as of the termination of
the commission.
§23-1-15. Procedure before commission.
The commission, and the insurance commissioner effective upon
termination of the commission, are not bound by the usual common-
law or statutory rules of evidence, but shall adopt formal rules
of practice and procedure as herein provided, and may make
investigations in a manner that in his or her judgment is best
calculated to ascertain the substantial rights of the parties and
to carry out the provisions of this chapter.
§23-1-17. Annual report by the insurance commissioner and
occupational pneumoconiosis board.
Annually, on or about the fifteenth day of September in each
year, the executive director insurance commissioner and the
occupational pneumoconiosis board shall make a report as of the
thirtieth day of June addressed to the governor, which shall
include a statement of the causes of the injuries for which the
awards were made, an explanation of the diagnostic techniques used
by the occupational pneumoconiosis board and all examining
physicians to determine the presence of disease, the extent of
impairment attributable thereto, a description of the scientific
support for the diagnostic techniques and a summary of public and
private research relating to problems and prevention of
occupational diseases. The report shall include a detailed
statement of all disbursements, and the condition of the fund,
together with any specific recommendations for improvements in the
workers' compensation law and for more efficient and responsive
administration of the workers' compensation law, which the
executive director considers appropriate. Copies of all annual
reports shall be filed with the secretary of state and shall be
made available to the Legislature and to the public at large.
§23-1-19. Civil remedies.
(a) Any person, firm, corporation or other entity which
willfully, by means of false statement or representation, or by
concealment of any material fact, or by other fraudulent scheme,
device or artifice on behalf of himself, itself or others, obtains or attempts to obtain benefits, payments, allowances or reduced
premium costs or other charges, including workers' compensation
coverage under the programs of the workers' compensation
commission, the company, a private carrier or self-insured
employer, to which he or it is not entitled, or in a greater
amount than that to which he or it is entitled, shall be liable
to the workers' compensation commission, the company, the private
carrier or self-insured employer, in an amount equal to three
times the amount of such benefits, payments or allowances to which
he or it is not entitled and shall be liable for the payment of
reasonable attorney fees and all other fees and costs of
litigation.
(b) No criminal action or indictment need be brought against
any person, firm, corporation or other entity as a condition for
establishing civil liability hereunder.
(c) A civil action under this section may be prosecuted and
maintained on behalf of the workers' compensation commission by
the attorney general and his assistants or, the insurance
commissioner, the company, a private carrier or self-insured
employer by any attorney in contract with or employed by the
workers' compensation commission, the insurance commissioner, the
company, a private carrier or self-insured employer to provide
such representation.
(d) Venue for a civil action under this section shall be
either in the county in which the defendant resides, or in Kanawha
County as selected by the commission or insurance commissioner. Upon creation of the company pursuant to article two-c of this
chapter, venue for a civil action under this section for the
company, private carriers and self-insured employers shall be
either in the county in which the defendant resides or the county
in which the injured worker was employed, as selected by the
company, the private carrier or self-insured employer.
(e) The remedies and penalties provided in this section are
in addition to those remedies and penalties provided elsewhere by
law.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER;
EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The state of West Virginia and all governmental agencies
or departments created by it, including county boards of
education, political subdivisions of the state, any volunteer fire
department or company and other emergency service organizations
as defined by article five, chapter fifteen of this code, and all
persons, firms, associations and corporations regularly employing
another person or persons for the purpose of carrying on any form
of industry, service or business in this state, are employers
within the meaning of this chapter and are required to subscribe
to and pay premium taxes into the workers' compensation fund for
the protection of their employees and are subject to all
requirements of this chapter and all rules prescribed by the workers' compensation commission with reference to rate,
classification and premium payment: Provided, That rates will be
adjusted by the commission to reflect the demand on the
compensation fund by the covered employer.
(b) The following employers are not required to subscribe to
the fund, but may elect to do so:
(1) Employers of employees in domestic services;
(2) Employers of five or fewer full-time employees in
agricultural service;
(3) Employers of employees while the employees are employed
without the state except in cases of temporary employment without
the state;
(4) Casual employers. An employer is a casual employer when
the number of his or her employees does not exceed three and the
period of employment is temporary, intermittent and sporadic in
nature and does not exceed ten calendar days in any calendar
quarter;
(5) Churches;
(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged
in thoroughbred horse racing; or
(7) Any volunteer rescue squad or volunteer police auxiliary
unit organized under the auspices of a county commission,
municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government
entities, political subdivisions; or area or regional emergency medical services boards of directors in furtherance of the
purposes of the emergency medical services act of article four-c,
chapter sixteen of this code: Provided, That if any of the
employers described in this subdivision have paid employees, to
the extent of those paid employees, the employer shall subscribe
to and pay premium taxes into the workers' compensation fund based
upon the gross wages of the paid employees but with regard to the
volunteers, the coverage remains optional.
(8) Any employer whose employees are eligible to receive
benefits under the federal Longshore and Harbor Workers'
Compensation Act, 33 U. S. C. §901, et seq., but only for those
employees eligible for those benefits.
(c) Notwithstanding any other provision of this chapter to
the contrary, whenever there are churches in a circuit which
employ one individual clergyman and the payments to the clergyman
from the churches constitute his or her full salary, such circuit
or group of churches may elect to be considered a single employer
for the purpose of premium payment into the workers' compensation
fund.
(d) Employers who are not required to subscribe to the
workers' compensation fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in that case are subject to all requirements of this
chapter and all rules and regulations prescribed by the commission
with reference to rates, classifications and premium payments and
shall afford to them the protection of this chapter, including section six of this article, but the failure of the employers to
choose to subscribe to and to pay premiums into the fund shall not
impose any liability upon them other than any liability that would
exist notwithstanding the provisions of this chapter.
(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not
be considered "regularly employing" within the meaning of this
section may choose to pay into the workers' compensation fund the
premiums provided for in this section, and at the time of making
application to the workers' compensation commission, the employer
shall furnish a statement under oath showing the probable length
of time the employment will continue in this state, the character
of the work, an estimate of the monthly payroll and any other
information which may be required by the commission. At the time
of making application the employer shall deposit with the
commission to the credit of the workers' compensation fund the
amount required by section five of this article. That amount
shall be returned to the employer if the employer's application
is rejected by the commission. Upon notice to the employer of the
acceptance of his or her application by the commission, he or she
is an employer within the meaning of this chapter and subject to
all of its provisions.
(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits under
this chapter shall, at the time of making application to the
commission in addition to other requirements of this chapter, furnish the commission with a certificate from the secretary of
state, where the certificate is necessary, showing that it has
complied with all the requirements necessary to enable it legally
to do business in this state and no application of a foreign
corporation employer shall be accepted by the commission until the
certificate is filed.
(g) The following employers may elect not to provide coverage
to certain of their employees under the provisions of this
chapter:
(1) Any political subdivision of the state including county
commissions and municipalities, boards of education, or emergency
services organizations organized under the auspices of a county
commission may elect not to provide coverage to any elected
official. The election not to provide coverage does not apply to
individuals in appointed positions or to any other employees of
the political subdivision;
(2) If an employer is a partnership, sole proprietorship,
association or corporation, the employer may elect not to include
as an "employee" within this chapter, any member of the
partnership, the owner of the sole proprietorship or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association
shall consist of a president, a vice president, a secretary and
a treasurer, each of whom is elected by the board of directors at
the time and in the manner prescribed by the bylaws. Other
officers and assistant officers that are considered necessary may be elected or appointed by the board of directors or chosen in any
other manner prescribed by the bylaws and, if elected, appointed
or chosen, the employer may elect not to include the officer or
assistant officer as an "employee" within the meaning of this
chapter: Provided, That except for those persons who are members
of the board of directors or who are the corporation's or
association's president, vice president, secretary and treasurer
and who may be excluded by reason of their positions from the
benefits of this chapter even though their duties,
responsibilities, activities or actions may have a dual capacity
of work which is ordinarily performed by an officer and also of
work which is ordinarily performed by a worker, an administrator
or an employee who is not an officer, no other officer or
assistant officer who is elected or appointed shall be excluded
by election from coverage or be denied the benefits of this
chapter merely because he or she is an officer or assistant
officer if, as a matter of fact:
(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by
a worker, administrator or employee who is not an officer;
(B) He or she is engaged ordinarily in performing the duties
of a worker, an administrator or an employee who is not an officer
and receives pay for performing the duties in the capacity of an
employee; or
(C) He or she is engaged in an employment palpably separate and distinct from his or her official duties as an officer of the
association or corporation;
(3) If an employer is a limited liability company, the
employer may elect not to include as an "employee" within this
chapter a total of no more than four persons, each of whom are
acting in the capacity of manager, officer or member of the
company.
(h) In the event of election under subsection (g) of this
section, the employer shall serve upon the commission written
notice naming the positions not to be covered and shall not
include the "employee's" remuneration for premium purposes in all
future payroll reports, and the partner, proprietor or corporate
or executive officer is not considered an employee within the
meaning of this chapter after the notice has been served.
Notwithstanding the provisions of subsection (g), section five of
this article, if an employer is delinquent or in default or has
not subscribed to the fund even though it is obligated to do so
under the provisions of this article, any partner, proprietor or
corporate or executive officer shall not be covered and shall not
receive the benefits of this chapter.
(i) "Regularly employing" or "regular employment" means
employment by an employer which is not a casual employer under
this section.
(j) Upon the termination of the commission, the criteria
governing which employer shall or may subscribe to the workers'
compensation commission shall also govern which employers shall or may purchase workers' compensation insurance under article two-
c of this chapter.
§23-2-1d. Primary contractor liability; definitions;
applications and exceptions; certificates of good
standing; reimbursement and indemnification;
termination of contracts; effective date; collections
efforts.
(a) For the exclusive purposes of this section, the term
"employer" as defined in section one of this article includes any
primary contractor who regularly subcontracts with other employers
for the performance of any work arising from or as a result of the
primary contractor's own contract: Provided, That a subcontractor
does not include one providing goods rather than services. For
purposes of this subsection, extraction of natural resources is
a provision of services. In the event that a subcontracting
employer defaults on its obligations to make payments to the
commission, then the primary contractor is liable for the
payments. However, nothing contained in this section shall extend
or except to a primary contractor or subcontractors the provisions
of section six, six-a or eight of this article. This section is
applicable only with regard to subcontractors with whom the
primary contractor has a contract for any work or services for a
period longer than thirty days: Provided, however, That this
section is also applicable to contracts for consecutive periods
of work that total more than thirty days. It is not applicable
to the primary contractor with regard to sub-subcontractors. However, a subcontractor for the purposes of a contract with the
primary contractor can itself become a primary contractor with
regard to other employers with whom it subcontracts. It is the
intent of the Legislature that no contractor, whether a primary
contractor, subcontractor or sub-subcontractor, escape or avoid
liability for any workers' compensation premium, assessment or
tax. The executive director shall propose for promulgation a rule
to effect this purpose on or before the thirty-first day of
December, two thousand three.
(b) A primary contractor may avoid initial liability under
subsection (a) of this section if it obtains from the executive
director, prior to the initial performance of any work by the
subcontractor's employees, a certificate that the subcontractor
is in good standing with the workers' compensation fund.
(1) Failure to obtain the certificate of good standing prior
to the initial performance of any work by the subcontractor
results in the primary contractor being equally liable with the
subcontractor for all delinquent and defaulted premium taxes,
premium deposits, interest and other penalties arising during the
life of the contract or due to work performed in furtherance of
the contract: Provided, That the commission is entitled to
collect only once for the amount of premiums, premium deposits and
interest due to the default, but the commission may impose other
penalties on the primary contractor or on the subcontractor, or
both.
(2) In order to continue avoiding liability under this section, the primary contractor shall request that the commission
inform the primary contractor of any subsequent default by the
subcontractor. In the event that the subcontractor does default,
the commission shall notify the primary contractor of the default
by placing a notice in the first-class United States mail, postage
prepaid, and addressed to the primary contractor at the address
furnished to the commission by the primary contractor. The
mailing is good and sufficient notice to the primary contractor
of the subcontractor's default. However, the primary contractor
is not liable under this section until the first day of the
calendar quarter following the calendar quarter in which the
notice is given and then the liability is only for that following
calendar quarter and thereafter and only if the subcontract has
not been terminated: Provided, That the commission is entitled to
collect only once for the amount of premiums, premium deposits and
interest due to the default, but the commission may impose other
penalties on the primary contractor or on the subcontractor, or
both.
(c) In any situation where a subcontractor defaults with
regard to its payment obligations under this chapter or fails to
provide a certificate of good standing as provided in this
section, the default or failure is good and sufficient cause for
a primary contractor to hold the subcontractor responsible and to
seek reimbursement or indemnification for any amounts paid on
behalf of the subcontractor to avoid or cure a workers'
compensation default, plus related costs, including reasonable attorneys' fees, and to terminate its subcontract with the
subcontractor notwithstanding any provision to the contrary in the
contract.
(d) The provisions of this section are applicable only to
those contracts entered into or extended on or after the first day
of January, one thousand nine hundred ninety-four.
(e) The commission may take any action authorized by section
five-a of this article in furtherance of its efforts to collect
amounts due from the primary contractor under this section.
(f) Effective upon termination of the commission, this
section shall be applicable only to unpaid premiums due the
commission or the old fund as provided in article two-c of this
chapter.
§23-2-2. Commission to be furnished information by employers,
state tax commissioner and division of unemployment
compensation; secrecy of information; examination of
employers, etc.; violation a misdemeanor.
(a) Every employer shall furnish the executive director, upon
request, all information required by him or her to carry out the
purposes of this chapter. Every employer shall have a continuous
and ongoing duty to maintain current information about its
activities, risks and rates on the books of the commission. The
executive director, or any person employed by the commission for
that purpose, may examine under oath any employer or officer,
agent or employee of any employer.
(b) Notwithstanding the provisions of any other statute to the contrary, specifically, but not exclusively, sections five and
five-b, article ten, chapter eleven of this code and section
eleven, article ten, chapter twenty-one-a of this code, the
executive director of the workers' compensation commission may
receive the following information:
(1) Upon written request to the state tax commissioner: The
names, addresses, places of business and other identifying
information of all businesses receiving a business franchise
registration certificate and the dates thereof; and the names and
social security numbers or other tax identification numbers of the
businesses and of the businesses' workers and employees, if
otherwise collected, and the quarterly or other applicable
reporting period and annual gross wages or other compensation paid
to the workers and employees of businesses reported pursuant to
the requirement of withholding of tax on income.
(2) Upon written application to the division of unemployment
compensation: In addition to the information that may be released
to the workers' compensation commission for the purposes of this
chapter under the provisions of chapter twenty-one-a of this code,
the names, addresses and other identifying information of all
employing units filing reports and information pursuant to section
eleven, article ten, chapter twenty-one-a of this code as well as
information contained in those reports regarding the number and
names, addresses and social security numbers of employees employed
and the gross quarterly or other applicable reporting period wages
paid by each employing unit to each identified employee.
(c) All information acquired by the workers' compensation
commission pursuant to subsection (b) of this section shall be
used only for auditing premium payments, assisting in a wage
determination, assisting in the determination of employment status
and registering businesses under the single point of registration
program as defined in section two, article one, chapter eleven as
set forth in article twelve, chapter eleven of this code. The
workers' compensation commission, upon receiving the business
franchise registration certificate information made available
pursuant to subsection (b) of this section, shall contact all
businesses receiving a business franchise registration certificate
and provide all necessary forms to register the business under the
provisions of this article. Any officer or employee of this state
who uses the information obtained under this section in any manner
other than the one stated in this section or elsewhere authorized
in this code, or who divulges or makes known in any manner any of
the information obtained under this section, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one thousand dollars or incarcerated in the county or
regional jail for not more than one year, or both together with
cost of prosecution.
(d) Reasonable costs of compilation and production of any
information made available pursuant to subsection (b) of this
section shall be charged to the workers' compensation commission.
(e) Information acquired by the commission pursuant to
subsection (b) of this section is not subject to disclosure under the provisions of chapter twenty-nine-b of this code.
(f) The right to request, gather and maintain information set
forth in this section shall transfer to the insurance commissioner
and the industrial council upon termination of the commission.
§23-2-3. Report forms and other forms for use of employers.
The commission, and effective upon termination of the
commission, the insurance commissioner, shall prepare and furnish
report forms for the use of employers subject to this chapter.
Every employer receiving from the commission any form or forms
with direction for completion and returning to the commission
shall return the form, within the period fixed by the commission,
completed as to answer fully and correctly all pertinent questions
in the form, and if unable to do so, shall give good and
sufficient reasons for the failure. Every employer subject to the
provisions of this chapter shall make application to the
commission on the forms prescribed by the commission for that
purpose; and any employer who terminates his or her business or
for any other reason is no longer subject to this chapter shall
immediately notify the commission on forms to be furnished by the
commission for that purpose.
§23-2-4. Classification of industries; rate of premiums;
authority to adopt various systems; accounts.
(a) The executive director with approval of the board of
managers is authorized to establish by rule a system for
determining the classification and distribution into classes of
employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter,
a system of multiple policy options with criteria for subscription
and criteria for an annual employer's statement providing both
benefits liability information and rate determination information.
(1) In addition, the rule shall provide for, but not be
limited to:
(A) Rate adjustments by industry or individual employer,
including merit rate adjustments;
(B) Notification regarding rate adjustments prior to the
quarter in which the rate adjustments will be in effect;
(C) Chargeability of claims; and
(D) Any further matters that are necessary and consistent
with the goals of this chapter;
(2) The rule shall require the establishment of a program
under which the commissioner may grant discounts on premium rates
for employers who meet either of the following requirements:
(A) Have not incurred a compensable injury for one year or
more and who maintain an employee safety committee or similar
organization and make periodic safety inspections of the
workplace;
(B) Successfully complete a loss prevention program,
including establishment of a drug-free workplace, prescribed by
the commission's safety and loss control office and conducted by
the commission or by any other person approved by the commission;
(3) The rule shall be consistent with the duty of the
executive director and the board of managers to fix and maintain the lowest possible rates of premium taxes consistent with the
maintenance of a solvent workers' compensation fund and the
reduction of any deficit that may exist in the fund and in keeping
with their fiduciary obligations to the fund;
(4) The rule shall be consistent with generally accepted
accounting principles;
(5) The rule shall be consistent with classification and
rate-making methodologies found in the insurance industry; and
(6) The rule shall be consistent with the principles of
promoting more effective workplace health and safety programs as
contained in article two-b of this chapter.
(b) In accordance with generally accepted accounting
principles, the workers' compensation commission shall keep an
accurate accounting of all money or moneys earned, due and
received by the workers' compensation fund and of the liability
incurred and disbursements made against the fund; and an accurate
account of all money or moneys earned, due and received from each
individual subscriber and of the liability incurred and
disbursements made against the same.
(c) Prospective rates set in accordance with the provisions
of this article shall at all times be financially sound in
accordance with generally accepted accounting principles and fully
fund the prospective claim obligations for the year in which the
rates were made. Rates, surcharges or assessments for deficit
management and deficit reduction purposes shall be fair and
equitable, financially sound in accordance with generally accepted accounting principles and sufficient to meet the payment
obligations of the fund.
(d) Notwithstanding any provision of subsection (c) of this
section to the contrary, except for those increases made effective
for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code taken prior to the
effective date of the amendment and reenactment of this section,
base rates, assessments and surcharges, except for individual
employer merit rate adjustments, shall not be increased during
fiscal years two thousand four and two thousand five and two
thousand six: Provided, That the portion of the rate increase
attributable to claims management incentive adjustments, as
determined by the compensation programs performance council for
fiscal year two thousand four prior to the effective date of the
amendment and reenactment of this section by the Legislature in
the year two thousand three, shall not be considered a part of the
employer's premium taxes and shall not be subject to collection
by the commission.
(e) Claims management incentive adjustments, whether imposed
in a manner that would result in either a debit or a credit to any
employer's account, shall not be considered by the board of
managers in its future rate determinations.
§23-2-5. Application; payment of premium taxes; gross wages;
payroll report; deposits; delinquency; default;
reinstatement; payment of benefits; notice to employees; criminal provisions; penalties.
(a) For the purpose of creating a workers' compensation fund,
each employer who is required to subscribe to the fund or who
elects to subscribe to the fund shall pay premium taxes calculated
as a percentage of the employer's gross wages payroll as defined
by the commission at the rate determined by the commission and
then in effect plus any additional premium taxes developed from
rates, surcharges or assessments as determined by the commission.
At the time each employer subscribes to the fund, the application
required by the commission shall be filed and a premium deposit
equal to the first quarter's estimated premium tax payment shall
be remitted. The minimum quarterly or other reporting period
premium to be paid by any employer is twenty-five dollars.
(1) Thereafter, the premium taxes shall be paid quarterly or
at other payment intervals established by the commission on or
before the last day of the month following the end of the quarter
or designated payment interval and shall be the prescribed
percentage of the entire gross wages of all employees, from which
net payroll is calculated and paid, during the preceding quarter
or other designated payment interval. The commission may require
employers, in accordance with the provisions of rules proposed by
the executive director and promulgated by the board of managers,
to report gross wages and pay premium taxes monthly or at other
intervals.
(2) Every subscribing employer shall make a gross wages
payroll report to the commission for the preceding reporting period. The report shall be on the form or forms prescribed by
the commission and shall contain all information required by the
commission.
(3) After subscribing to the fund, each employer shall remit
with each premium tax payment an amount calculated to be
sufficient to maintain a premium deposit equal to the premium
payment for the previous reporting period. The commission may
reduce the amount of the premium deposit required from seasonal
employers for those quarters reporting periods during which
employment is significantly reduced. If the employer pays premium
tax on a basis other than quarterly, the commission may require
the deposit to be based upon some other time period. The premium
deposit shall be credited to the employer's account on the books
of the commission and used to pay premium taxes and any other sums
due the fund when an employer becomes delinquent or in default as
provided in this article.
(4) All premium taxes and premium deposits required by this
article to be paid shall be paid by the employers to the
commission, which shall maintain a record of all sums so received.
Any sum mailed to the commission is considered to be received on
the date the envelope transmitting it is postmarked by the United
States postal service. All sums received by the commission shall
be deposited in the state treasury to the credit of the workers'
compensation commission in the manner now prescribed by law.
(5) The commission shall encourage employer efforts to create
and maintain safe workplaces, to encourage loss prevention programs and to encourage employer-provided wellness programs,
through the normal operation of the experience rating formula,
seminars and other public presentations, the development of model
safety programs and other initiatives as may be determined by the
executive director and the board of managers.
(b) Failure of an employer to timely pay premium taxes as
provided in subsection (a) of this section, to timely file a
payroll report or to maintain an adequate premium deposit shall
cause the employer's account to become delinquent. No employer
will be declared delinquent or be assessed any penalty for the
delinquency if the commission determines that the delinquency has
been caused by delays in the administration of the fund. The
commission shall, in writing, within sixty days of the end of each
quarter reporting period notify all delinquent employers of their
failure to timely pay premium taxes, to timely file a payroll
report or to maintain an adequate premium deposit. Each employer
who fails to timely file any payroll report or timely pay the
premium tax due with the report, or both, for any quarter
reporting period commencing on and after the first day of July,
one thousand nine hundred ninety-five, shall pay a late reporting
or payment penalty of the greater of fifty dollars or a sum
obtained by multiplying the premium tax due with the report by the
penalty rate applicable to that quarter reporting period. The
penalty rate to be used in a workers' compensation commission's
fiscal year is calculated annually on the first day of each fiscal
year. The penalty rate used to calculate the penalty for each quarter reporting period in a fiscal year is the quotient, rounded
to the nearest higher whole number percentage rate, obtained by
dividing the sum of the prime rate plus four percent by four. The
prime rate is the rate published in the Wall Street Journal on the
last business day of the commission's prior fiscal year reflecting
the base rate on corporate loans posted by at least seventy-five
percent of the nation's thirty largest banks. The late penalty
shall be paid with the most recent quarter's reporting period's
report and payment and is due when that reporting period's report
and payment are filed. If the late penalty is not paid when due,
it may be charged to and collected by the commission from the
employer's premium deposit account or otherwise as provided by
law. The notification shall demand the filing of the delinquent
payroll report and payment of delinquent premium taxes, the
penalty for late reporting or payment of premium taxes or premium
deposit, the interest penalty and an amount sufficient to maintain
the premium deposit before the end of the third month following
the end of the preceding quarter reporting period. Interest shall
accrue and be charged on the delinquent premium payment and
premium deposit pursuant to section thirteen of this article.
(c) Whenever the commission notifies an employer of the
delinquent status of its account, the notification shall explain
the legal consequence of subsequent default by an employer
required to subscribe to the fund and the legal consequences of
termination of an electing employer's account.
(d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve the delinquency within the
prescribed period, shall place the account in default and shall
deprive the default employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer is liable as provided in section eight of this
article. The default employer's liability under these sections
is retroactive to midnight of the last day of the month following
the end of the quarter reporting period for which the delinquency
occurs. The commission shall notify the default employer of the
method by which the employer may be reinstated with the fund. The
commission shall also notify the employees of the employer by
written notice as hereinafter provided in this section.
(e) Failure by any employer, who voluntarily elects to
subscribe, to resolve the delinquency within the prescribed period
shall place the account in default and shall automatically
terminate the election of the employer to pay into the workers'
compensation fund and shall deprive the employer and the employees
of the default elective employer of the benefits and protection
afforded by this chapter, including section six of this article,
and the employer is liable as provided in section eight of this
article. The default employer's liability under that section is
retroactive to midnight of the last day of the month following the
end of the quarter payment period for which the delinquency
occurs. Employees who were the subject of the default employer's
voluntary election to provide them the benefits afforded by this
chapter shall have the protection terminated at the time of their employer's default.
(f) (1) Except as provided in subdivision (3) of this
subsection, any employer who is required to subscribe to the fund
and who is in default on the effective date of this section or who
subsequently defaults, and any employer who has elected to
subscribe to the fund and who defaults and whose account is
terminated prior to the effective date of this section or whose
account is subsequently terminated, shall be restored immediately
to the benefits and protection of this chapter only upon the
filing of all delinquent payroll and other reports required by the
commission and payment into the fund of all unpaid premiums, an
adequate premium deposit, accrued interest and the penalty for
late reporting and payment. Interest is calculated as provided
by section thirteen of this article.
The commission shall not have the authority to waive either
premium or accrued interest: Provided, That until termination of
the commission, the commissioner shall have the authority to waive
either premium or accrued interest if the waiver is part of the
full and final resolution of administrative or civil litigation.
The provisions of section seventeen of this article apply to any
action or decision of the commission under this section.
(2) The commission may restore a defaulted or terminated
employer through a reinstatement agreement. The reinstatement
agreement shall require the payment in full of all premium taxes,
premium deposits, the penalty for late reporting and payment, past
accrued interest and future interest calculated pursuant to the provisions of section thirteen of this article. Notwithstanding
the filing of a reinstatement application or the entering into of
a reinstatement agreement, the commission is authorized to file
a lien against the employer as provided by section five-a of this
article. In addition, entry into a reinstatement agreement is
discretionary with the commission. Its discretion shall be
exercised in keeping with the fiduciary obligations owed to the
workers' compensation fund. If the commission declines to enter
into a reinstatement agreement and if the employer does not comply
with the provisions of subdivision (1) of this subsection, the
commission may proceed with any of the collection efforts provided
by section five-a of this article or as otherwise provided by this
code. Applications for reinstatement shall: (A) Be made upon
forms prescribed by the commission; (B) include a report of the
gross wages payroll of the employer which had not been reported
to the commission during the entire period of delinquency and
default. The gross wages information shall be certified by the
employer or its authorized agent; and (C) include a payment of a
portion of the liability equal to one half of one percent of the
gross payroll during the period of delinquency and default or
equal to another portion of the liability determined by rule but
not to exceed the amount of the entire liability due and owing for
the period of delinquency and default. An employer who applies
for reinstatement is entitled to the benefits and protection of
this chapter on the day a properly completed and acceptable
application which is accompanied by the application payment is received by the commission: Provided, That if the commission
reinstates an employer subject to the terms of a reinstatement
agreement, the subsequent failure of the employer to make
scheduled payments or to pay accrued or future interest in
accordance with the reinstatement agreement or to timely file
current reports and to pay current premiums within the month
following the end of the period for which the report and payment
are due, or to otherwise maintain its account in good standing or,
if the reinstatement agreement does not require earlier
restoration of the premium deposit, to restore the premium deposit
to the required amount by the end of the repayment period shall
cause the reinstatement application and the reinstatement
agreement to be null, void and of no effect, and the employer is
denied the benefits and protection of this chapter effective from
the date that the employer's account originally became delinquent.
(3) Any employer who fails to maintain its account in good
standing with regard to subsequent premium taxes and premium
deposits after filing an application for reinstatement and prior
to the final resolution of an application for reinstatement by
entering into a reinstatement agreement or by payment of the
liability in full as provided in subdivision (1) of this
subsection shall cause the reinstatement application to be null,
void and of no effect and the employer shall be denied the
benefits and protection of this chapter effective from the date
that the employer's account originally became delinquent.
(4) Following any failure of an employer to comply with the provisions of a reinstatement agreement, the commission may make
and continue with any of the collection efforts provided by this
chapter or elsewhere in this code even if the employer files
another reinstatement application.
(g) With the exception noted in subsection (h), section one
of this article, no employee of an employer required by this
chapter to subscribe to the workers' compensation fund shall be
denied benefits provided by this chapter because the employer
failed to subscribe or because the employer's account is either
delinquent or in default.
(h) (1) The provisions of this section shall not deprive any
individual of any cause of action which has accrued as a result
of an injury or death which occurred during any period of
delinquency not resolved in accordance with the provisions of this
article, or subsequent failure to comply with the terms of the
repayment agreement.
(2) Upon withdrawal from the fund or termination of election
of any employer, the employer shall be refunded the balance due
the employer of its deposit, after deducting all amounts owed by
the employer to the workers' compensation fund and other agencies
of this state, and the commission shall notify the employees of
the employer of the termination in the manner as the commission
may consider best and sufficient.
(3) Notice to employees provided in this section shall be
given by posting written notice that the employer is defaulted
under the compensation law of West Virginia, and in the case of employers required by this chapter to subscribe and pay premiums
to the fund, that the defaulted employer is liable to its
employees for injury or death, both in workers' compensation
benefits and in damages at common law or by statute; and in the
case of employers not required by this chapter to subscribe and
pay premiums to the fund, but voluntarily electing to do so as
provided in this article, that neither the employer nor the
employees are protected by the law as to any injury or death
sustained after the date specified in the notice. The notice
shall be in the form prescribed by the commission and shall be
posted in a conspicuous place at the chief works of the employer,
as it appears in records of the commission. If the chief works
of the employer cannot be found or identified, the notices shall
be posted at the front door of the courthouse of the county in
which the chief works are located, according to the commission's
records. Any person who shall, prior to the reinstatement of the
employer, as provided in this section, or prior to sixty days
after the posting of the notice, whichever shall first occur,
remove, deface or render illegible the notice, shall be guilty of
a misdemeanor and, upon conviction thereof, shall be fined one
thousand dollars. The notice shall state this provision upon its
face. The commission may require any sheriff, deputy sheriff,
constable or other official of the state of West Virginia,
authorized to serve civil process, to post the notice and to make
return thereof of the fact of the posting to the commission. Any
failure of the officer to post any notice within ten days after he or she has received the notice from the commission, without
just cause or excuse, constitutes a willful failure or refusal to
perform a duty required of him or her by law within the meaning
of section twenty-eight, article five, chapter sixty-one of this
code. Any person actually injured by reason of the failure has
an action against the official, and upon any official bond he or
she may have given, for the damages as the person may actually
have incurred, but not to exceed, in the case of any surety upon
the bond, the amount of the penalty of the bond. Any official
posting the notice as required in this subdivision is entitled to
the same fee as is now or may hereafter be provided for the
service of process in suits instituted in courts of record in the
state of West Virginia. The fee shall be paid by the commission
out of any funds at its disposal, but shall be charged by the
commission against the account of the employer to whose
delinquency the notice relates.
§23-2-5a. Collection of premiums from defaulting employers;
interest and penalties; civil remedies; creation and
enforcement of lien against employer and purchaser;
duty of secretary of state to register liens;
distraint powers; insolvency proceedings; secretary
of state to withhold certificates of dissolution;
injunctive relief; bond; attorney fees and costs.
(a) The workers' compensation commission in the name of the
state may commence a civil action against an employer who, after
due notice, defaults in any payment required by this chapter. If judgment is against the employer, the employer shall pay the costs
of the action. A civil action under this section shall be given
preference on the calendar of the court over all other civil
actions. Upon prevailing in a civil action, the commission is
entitled to recover its attorneys' fees and costs of action from
the employer.
(b) In addition to the provisions of subsection (a) of this
section, any payment, interest and penalty due and unpaid under
this chapter is a personal obligation of the employer immediately
due and owing to the commission and shall, in addition, be a lien
enforceable against all the property of the employer: Provided,
That the lien shall not be enforceable as against a purchaser
(including a lien creditor) of real estate or personal property
for a valuable consideration without notice, unless docketed as
provided in section one, article ten-c, chapter thirty-eight of
this code: Provided, however, That the lien may be enforced as
other judgment liens are enforced through the provisions of said
chapter and the same is considered deemed by the circuit court to
be a judgment lien for this purpose.
(c) In addition to all other civil remedies prescribed, the
commission may in the name of the state, after giving appropriate
notice as required by due process, distrain upon any personal
property, including intangible property, of any employer
delinquent for any payment, interest and penalty thereon. If the
commission has good reason to believe that the property or a
substantial portion of the property is about to be removed from the county in which it is situated, upon giving appropriate
notice, either before or after the seizure, as is proper in the
circumstances, the commission may likewise distrain in the name
of the state before the delinquency occurs. For that purpose, the
commission may require the services of a sheriff of any county in
the state in levying the distress in the county in which the
sheriff is an officer and in which the personal property is
situated. A sheriff collecting any payment, interest and penalty
thereon is entitled to the compensation as provided by law for his
or her services in the levy and enforcement of executions. Upon
prevailing in any distraint action, the commission is entitled to
recover its attorneys' fees and costs of action from the employer.
(d) In case a business subject to the payments, interest and
penalties thereon imposed under this chapter is operated in
connection with a receivership or insolvency proceeding in any
state court in this state, the court under whose direction the
business is operated shall, by the entry of a proper order or
decree in the cause, make provisions, so far as the assets in
administration will permit, for the regular payment of the
payments, interest and penalties as they become due.
(e) The secretary of state of this state shall withhold the
issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by the commission that all
payments, interest and penalties thereon against the corporation which is an employer under this chapter have been paid or that
provision satisfactory to the commission has been made for
payment.
(f) In any case when an employer required to subscribe to the
fund defaults in payments of premium, premium deposits, penalty
or interest thereon, for as many as two calendar quarters
reporting periods, which reporting periods need not be
consecutive, and remains in default after due notice, the
commission may bring action in the circuit court of Kanawha County
to enjoin the employer from continuing to carry on the business
in which the liability was incurred: Provided, That the commission
may as an alternative to this action require the delinquent
employer to file a bond in the form prescribed by the commission
with satisfactory surety in an amount not less than fifty percent
more than the payments, interest and penalties due.
§23-2-9. Election of employer or employers' group to be self-
insured and to provide own system of compensation;
exceptions; catastrophe coverage; self
administration; rules; penalties; regulation of self-
insurers.
(a) Notwithstanding any provisions of this chapter to the
contrary, the following types of employers or employers' groups
may apply for permission to self-insure their workers'
compensation risk including their risk of catastrophic injuries.
(1) The types of employers are:
(A) Any employer who is of sufficient capability and financial responsibility to ensure the payment to injured
employees and the dependents of fatally injured employees of
benefits provided for in this chapter at least equal in value to
the compensation provided for in this chapter;
(B) Any employer or group of employers as provided for
subdivision (c) of such capability and financial responsibility
who maintains its own benefit fund or system of compensation to
which its employees are not required or permitted to contribute
and whose benefits are at least equal in value to those provided
for in this chapter; or
(C) Any group of employers who are subject to the same
collective bargaining agreement or who are in a collective
bargaining group may apply to the commission to collectively self-
insure their obligations under this chapter. The employers' group
must individually and collectively meet the conditions set forth
in paragraph (A) or (B) of this subdivision. There shall be joint
and several liability for all groups of employers who choose to
self-insure under the provisions of this article. Any employer
who is signatory to a collective bargaining agreement that allows
for participation in a group workers' compensation insurance
program may join with any other employer or employers that are
signatory to a collective bargaining agreement or agreements that
allow for participation in a group workers' compensation program
and jointly apply to the commission to collectively self-insure
their obligations under this chapter. The employers must
collectively meet the conditions set forth in paragraph (A) or (B) of this subdivision. There shall be joint and several liability
for all employers who choose to jointly self-insure under the
provisions of this article.
(2) In order to be approved for self-insurance status, the
employer shall:
(A) Have an effective health and safety program at its
workplaces; and
(B) Provide security or bond in an amount and form determined
by the executive director with the approval of the board of
managers which shall balance the employer's financial condition
based upon an analysis of its audited financial statements and the
full accrued value of current liability for future claim payments
based upon generally accepted actuarial and accounting principles
of the employer's existing and expected liability.
(3) Any employer whose record upon the books of the
commission shows a liability, as determined on an accrued basis
against the workers' compensation fund incurred on account of
injury to or death of any of the employer's employees, in excess
of premiums paid by the employer, shall not be granted the right,
individually and directly or from the benefit funds or system of
compensation, to be self-insured until the employer has paid into
the workers' compensation fund the amount of the excess of
liability over premiums paid, including the employer's proper
proportion of the liability incurred on account of catastrophes
or second injuries as defined in section one, article three of
this chapter and charged against such fund.
(4) Upon a finding that the employer has met all of the
requirements of this section, the employer may be permitted
self-insurance status. An annual review of each self-insurer's
continuing ability to meet its obligations and the requirements
of this section shall be made by the workers' compensation
commission. This review shall include a redetermination of the
amount of security or bond which shall be provided by the
employer. Failure to provide any new amount or form of security
or bond may cause the employer's self-insurance status to be
terminated by the workers' compensation commission. The security
or bond provided by employers prior to the second day of February,
one thousand nine hundred ninety-five, shall continue in full
force and effect until the performance of the employer's annual
review and the entry of any appropriate decision on the amount or
form of the employer's security or bond.
(5) Whenever a self-insured employer furnishes security or
bond, including replacement and amended bonds and other
securities, as surety to ensure the employer's or guarantor's
payment of all obligations under this chapter for which the
security or bond was furnished, the security or bond shall be in
the most current form or forms approved and authorized by the
commission for use by the employer or its guarantors, surety
companies, banks, financial institutions or others in its behalf
for that purpose.
(b) (1) Notwithstanding any provision in this chapter to the
contrary, self-insured employers shall, effective the first day of July, two thousand four, administer their own claims. The
executive director shall, pursuant to rules promulgated by the
board of managers, regulate the administration of claims by
employers granted permission to self-insure their obligations
under this chapter. Such rules shall be promulgated at least
thirty days prior to the first day of July, two thousand four.
A self-insured employer shall comply with rules promulgated by the
board of managers governing the self-administration of its claims.
(2) An employer or employers' group who self-insures its risk
and self-administers its claims shall exercise all authority and
responsibility granted to the commission in this chapter and
provide notices of action taken to effect the purposes of this
chapter to provide benefits to persons who have suffered injuries
or diseases covered by this chapter. An employer or employers'
group granted permission to self-insure and self-administer its
obligations under this chapter shall at all times be bound and
shall comply fully with all of the provisions of this chapter.
Furthermore, all of the provisions contained in article four of
this chapter pertaining to disability and death benefits are
binding on and shall be strictly adhered to by the self-insured
employer in its administration of claims presented by employees
of the self-insured employer. Violations of the provisions of
this chapter and such rules relating to this chapter as may be
approved by the board of managers may constitute sufficient
grounds for the termination of the authority for any employer to
self-insure its obligations under this chapter. Claim notices currently generated by the commission on behalf of self-insured
employers must be generated and sent by the self-insured employer
or its third-party administrator.
(c) Each self-insured employer shall, on or before the last
day of the first month of each quarter or other assigned reporting
period, file with the commission a certified statement of the
total gross wages and earnings of all of the employer's employees
subject to this chapter for the preceding quarter or other
assigned reporting period. Each self-insured employer shall pay
into the workers' compensation fund as portions of its self-
insured employer premium tax:
(1) A sum sufficient to pay the employer's proper portion of
the expense of the administration of this chapter;
(2) A sum sufficient to pay the employer's proper portion of
the expense of claims for those employers who are in default in
the payment of premium taxes or other obligations;
(3) A sum sufficient to pay the employer's fair portion of
the expenses of the disabled workers' relief fund;
(4) A sum sufficient to maintain as an advance deposit an
amount equal to the previous quarter or other assigned reporting
period's payment of each of the foregoing three sums;
(5) A sum as determined by the commission to be sufficient to
pay the employer's portion of rates, surcharges or deficit
management and deficit reduction assessments; and
(6) A sum as determined by the commission to pay the
employer's portion of self-insured catastrophic injury benefits, and second injury payments on all self-insured second injury
claims other than second injury claims for those employers self-
insured for second injury. Any employer previously self-insured
for second injury benefits shall continue to be responsible for
payment of those benefits.
(d) The required payments to the employer's injured employees
or dependents of fatally injured employees as benefits provided
for by this chapter including second injury benefits and
catastrophic injury benefits, if applicable, shall constitute the
remaining portion of the self-insurer's premium tax.
(e) Notwithstanding any provision of subsection (d) of this
section to the contrary, except for those increases made effective
for fiscal year two thousand four by action of the compensation
programs performance council heretofore established in article
three, chapter twenty-one-a of this code taken prior to the
effective date of the amendment and reenactment of this section,
the portion of the premium taxes for each self-insured employer
as determined under subdivisions (1) through (6), inclusive,
subsection (c) of this section shall not be increased during
fiscal years two thousand four, two thousand five and two thousand
six.
(f) (1) If an employer defaults in the payment of any portion
of its self-insured employer premium taxes, surcharges or
assessments, the commission shall, in an appropriate case,
determine the full accrued value based upon generally accepted
actuarial and accounting principles of the employer's liability including the costs of all awarded claims and of all incurred but
not reported claims. The amount determined may, in an appropriate
case, be assessed against the employer. The commission may demand
and collect the present value of the defaulted tax liability.
Interest shall accrue upon the demanded amount as provided for in
section thirteen of this article until the premium tax is fully
paid. Payment of all amounts then due to the commission and to the
employer's employees is a sufficient basis for reinstating the
employer to good standing with the fund. In addition, any self-
insured employer who, without good cause, ceases to make required
payments to the employer's injured employees or dependents of
fatally injured employees as benefits provided for by this chapter
including second injury benefits and catastrophic injury benefits,
if applicable, is in default. The board of managers shall
establish by rule the procedures by which the existence or
nonexistence of good cause is to be determined by the commission.
(2) Premium tax assessments are special revenue taxes under
and according to the provisions of state workers' compensation law
and are considered to be tax claims, as priority claims or
administrative expense claims according to those provisions under
the law provided in the United States bankruptcy code, Title 11
of the United States Code. In addition, as the same was
previously intended by the prior provisions of this section, this
amendment and reenactment is for the purpose of clarification of
the taxing authority of the workers' compensation commission.
(g) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection
(c), section one, article three of this chapter. A self-insured
employer who elects to insure its catastrophic risk through a
policy of excess insurance obtained through a private insurance
carrier approved by the commission shall provide a copy of the
policy to the commission. Upon termination of the commission,
self-insured employers shall either self-insure their catastrophic
risk or insure their catastrophic risk through a policy of excess
insurance obtained through a private insurance carrier approved
by the insurance commissioner. Self-insured employers shall also
reinsure their catastrophic risks.
(1) If the employer does not elect to self-insure its
catastrophic risk, the employer shall pay premium taxes for this
coverage in the same manner as is provided for in section four of
this article and in rules adopted to implement that section. As
stated in this subsection, this option shall expire upon
termination of the commission. If the employees of that employer
suffer injury or death from a catastrophe, the payment of the
resulting benefits shall be made from the catastrophe reserve of
the surplus fund provided for in subsection (b), section one,
article three of this chapter. Any portion of an employer's
catastrophic liability insured and paid under a policy of
insurance purchased by the employer shall not be included in the
liabilities upon which the employer's security or bond is
determined in subsection (a) of this section.
(2) If an otherwise self-insured employer elects to self-insure its catastrophic risk, the security or bond required in
subsection (a) of this section shall include the liability for the
catastrophic risk.
(h) For those employers previously permitted to self-insure
their second injury risks, the amount of the security or bond
required in subsection (a) of this section shall include the
liability for that risk. All benefits provided for by this
chapter which are awarded to the employer's employees which
constitute second injury life awards shall be paid by the employer
and not the commission.
(i) The commission may create, implement, establish and
administer a perpetual self-insurance security risk pool of funds,
sureties, securities, insurance provided by private insurance
carriers or other states' programs, and other property, of both
real and personal properties, to secure the payment of obligations
of self-insured employers. If a pool is created, the board of
managers shall adopt rules for the organizational plan,
participation, contributions and other payments which may be
required of self-insured employers under this section. The board
of managers may adopt a rule authorizing the commission to assess
each self-insured employer in proportion according to each
employer's portion of the unsecured obligation and liability or
to assess according to some other method provided for by rule
which shall properly create and fund the risk pool to serve the
needs of employees, employers and the workers' compensation fund
by providing adequate security. The board of managers, in establishing a security risk pool, may authorize the executive
director to use any assessments, premium taxes and revenues and
appropriations as may be made available to the commission.
Effective upon termination of the commission, all statutory and
regulatory authority provided to the commission and board of
managers over pools created pursuant to this section shall
transfer to the insurance commissioner: Provided, That the funds
contained in the security pool shall be deposited into the old
fund and the funds contained in the guaranty pool shall be
deposited in the self-insured employer guaranty risk pool created
in article two-c of this chapter. All assets held by the
commission for security pursuant to 85 CSR §19 (2004) shall
transfer to the insurance commissioner.
(j) Any self-insured employer which has had a period of
inactivity due to the nonemployment of employees which results in
its reporting of no wages on reports to the commission for a
period of four or more consecutive quarters shall have its status
at the commission inactivated and shall apply for reactivation to
status as a self-insured employer prior to its reemployment of
employees. Despite the inactivation, the self-insured employer
shall continue to make payments on all awards for which it is
responsible. Upon application for reactivation of its status as
an operating self-insured employer, the employer shall document
that it meets the eligibility requirements needed to maintain
self-insured employer status under this section and any rules
adopted to implement it. If the employer is unable to requalify and obtain approval for reactivation, the employer shall,
effective with the date of employment of any employee, become a
subscriber to the workers' compensation fund and, upon termination
of the commission, shall purchase workers' compensation insurance
as provided for in article two-c of this chapter, but shall
continue to be a self-insurer as to the prior period of active
status and to furnish security or bond and meet its prior self-
insurance obligations.
(k) In any case under the provisions of this section that
require the payment of compensation or benefits by an employer in
periodical payments and the nature of the case makes it possible
to compute the present value of all future payments, the
commission may, in its discretion, at any time compute and permit
to be paid into the workers' compensation fund an amount equal to
the present value of all unpaid future payments on the award or
awards for which liability exists in trust. Thereafter, the
employer shall be discharged from any further portion of premium
tax liability upon the award or awards and payment of the award
or awards shall be assumed by the commission. Upon termination
of the commission, those self-insured employers may thereafter
purchase workers' compensation insurance as provided for in
article two-c of this chapter, but said self-insured employers
shall remain liable for their self-insured employer claims
liabilities.
(l) Any employer subject to this chapter, who elects to carry
the employer's own risk by being self-insured employer and who has complied with the requirements of this section and of any
applicable rules, shall not be liable to respond in damages at
common law or by statute for the injury or death of any employee,
however occurring, after the election's approval and during the
period that the employer is allowed to carry the employer's own
risk.
(m) An employer may not hire any person or group to self-
administer claims under this chapter as a third-party
administrator unless the person or group has been determined to
be qualified to be a third-party administrator by the commission
pursuant to rules adopted by the board of managers. Any person
or group whose status as a third-party administrator has been
revoked, suspended or terminated by the commission shall
immediately cease administration of claims and shall not
administer claims unless subsequently authorized by the
commission.
(n) All regulatory, oversight, and document gathering
authority provided to the commission under section nine, article
two, chapter twenty-three shall transfer to the insurance
commissioner and the industrial council upon termination of the
commission.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
(a) Where a compensable injury or death is caused, in whole
or in part, by the act or omission of a third party, the injured
worker or, if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative are
entitled to compensation under the provisions of this chapter and
shall not by having received compensation be precluded from making
claim against the third party.
(b) Notwithstanding the provisions of subsection (a) of this
section, if an injured worker, his or her dependents or his or her
personal representative makes a claim against the third party and
recovers any sum for the claim, the commission or a self-insured
employer shall be allowed statutory subrogation with regard to
medical benefits paid as of the date of the recovery. The
commission or self-insured employer shall permit the deduction
from the amount received a reasonable attorney's fee fees and a
reasonable portion of costs. It is the duty of the injured
worker, his or her dependents, his or her personal representative,
or his or her attorney to notify the commission and the employer
when the claim is filed against the third party.
(c) In the event that an injured worker, his or her
dependents or personal representative makes a claim against a
third party, there shall be, and there is hereby created, a
statutory subrogation lien upon the moneys received which shall
exist in favor of the commission or self-insured employer. Any
injured worker, his or her dependents or personal representative
who receives moneys in settlement in any manner of a claim against
a third party remains subject to the subrogation lien until
payment in full of the amount permitted to be subrogated under
subsection (b) of this section is paid.
(d) The right of subrogation granted by the provisions of
this section shall not attach to any claim arising from a right
of action which arose or accrued, in whole or in part, prior to
the effective date of the amendment and reenactment of this
section during the year two thousand three. Effective the first
day of January, two thousand six, the commission, any successor
to the commission, any other private carrier and any self-insured
employer shall be allowed statutory subrogation with regard to all
medical and indemnity benefits actually paid as of the date of the
recovery. The commission, successor to the commission, any other
private carrier and the self-insured employer shall permit the
deduction from the amount received a reasonable attorney's fees
and costs and may negotiate the amount to accept as subrogation.
It is the duty of the injured worker, his or her dependents, his
or her personal representative or his or her attorney to give
reasonable notice to the commission, successor to the commission,
any other private carrier, or the self-insured employer after a
claim is filed against the third party and prior to the
disbursement of any third party recovery. The statutory
subrogation described in this section does not apply to uninsured
and underinsured motorist coverage or any other insurance coverage
purchased by the injured worker or on behalf of the injured
worker. If the injured worker obtains a recovery from a third
party and the injured worker, personal representative or the
injured worker's attorney fails to protect the statutory right of
subrogation created herein, the injured worker, personal representative and the injured worker's attorney shall lose the
right to retain attorney fees and costs out of the subrogation
amount. In addition, such failure creates a cause of action for
the private carrier or self-insured employer against the injured
worker, personal representative and the injured worker's attorney
for the amount of the full subrogation amount and the reasonable
fees and costs associated with any such cause of action. The
right of subrogation granted by the provisions of this subsection
shall not attach to any claim arising from a right of action which
arose or accrued, in whole or in part, prior to the effective date
of the amendment and reenactment of this section during the year
two thousand five.
(e) The right of subrogation granted the commission in
subsections (a) through (c) of this section shall be exercised by
the insurance commissioner and his or her designated administrator
of the old fund, as set forth in article two-c of this chapter,
for any claim arising from a right of action which arose or
accrued, in whole or in part, prior to the effective date of the
amendment and reenactment of this section during the year two
thousand five. The insurance commissioner and his or her
designated administrator shall be paid a recovery fee of ten
percent of the actual amount recovered through subrogation with
the remainder to be deposited into the old fund.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-1. Findings and purpose.
(a) The Legislature finds that:
(1) There is a long-term actuarial funding crisis in the
state-run monopolistic workers' compensation system;
(2) Similar short-term and long-term crises have been ongoing
during the past two decades;
(3) During the current crisis, employers in West Virginia
find it increasingly difficult to afford the rates charged by the
workers' compensation commission for workers' compensation
coverage and that paying said rates adversely impacts employers'
ability to compete in a global economic environment;
(4) The cost of obtaining workers' compensation coverage from
the state system may result in many employers leaving the state;
(5) Employers' access to competitive workers' compensation
rates and the resulting economic development benefit is of utmost
importance to the citizens of West Virginia;
(6) A mechanism is needed to provide an enduring solution to
this recurring workers' compensation crisis;
(7) An employers' mutual insurance company or a similar
entity has proven to be a successful mechanism in other states for
helping employers secure insurance and for stabilizing the
insurance market;
(8) There is a substantial public interest in creating a
method to provide a stable workers' compensation insurance market
in this state;
(9) The state-run workers' compensation program is a
substantial actual and potential liability to the state;
(10) There is substantial public benefit in transferring certain actual and potential future liability of the state to the
private sector and creating a stable self-sufficient entity which
will be a potential source of workers' compensation coverage for
employers in this state;
(11) A stable, financially viable insurer in the private
sector will aid in providing a continuing source of insurance
funds to compensate injured workers; and
(12) Because the public will greatly benefit from the
formation of an employers' mutual insurance company, state efforts
to encourage and support the formation of such an entity,
including providing funding for the entity's initial capital, is
in the clear public interest.
(b) The purpose of this article is to create a mechanism for
the formation of an employers' mutual insurance company that will
provide:
(1) A means for employers to obtain workers' compensation
insurance that is reasonably available and affordable; and
(2) Compensation to employees of mutual policyholders who
suffer work place injuries as defined in chapter twenty-three of
this code.
§23-2C-2. Definitions.
(a) "Executive director" means the executive director of the
West Virginia workers' compensation commission as provided in
section one-b, article one, chapter twenty-three of this code.
(b) "Commission" means the West Virginia workers'
compensation commission as provided by section one, article one, chapter twenty-three of this code.
(c) "Insurance commissioner" means the insurance commissioner
of West Virginia as provided in section one, article two, chapter
thirty-three of this code.
(d) "Company" or "successor to the commission" means the
employers' mutual insurance company created pursuant to the terms
of this article.
(e) "Policy default" shall mean a policyholder that has
failed to comply with the terms of its workers' compensation
insurance policy and is consequently without workers' compensation
insurance coverage.
(f) "Industrial insurance" means insurance which provides all
compensation and benefits required by chapter twenty-three of this
code.
(g) "Insurer" includes:
(1) A self-insured employer; and
(2) A private carrier.
(h) "Industrial council" means the advisory group established
in section five of this article.
(i) "Mutualization transition fund" shall be a fund over
which the state treasurer is custodian. Moneys transferred or
otherwise payable to the mutualization transition fund shall be
deposited in the state treasury to the credit of the mutualization
transition fund. Disbursements shall be made from the
mutualization transition fund upon requisitions signed by the
executive director, and, upon termination of the commission, the insurance commissioner, and shall be reasonably related to the
legal, operational, consultative and human resource related
expenses associated with the establishment of the company and the
transferring of personnel from the commission to the company.
(j) "New fund" shall mean a fund owned and operated by the
commission and, upon termination of the commission, the successor
organization of the West Virginia workers' compensation
commission, and shall consist of those funds transferred to it
from the workers' compensation fund and any other applicable
funds. New fund shall include all moneys due and payable to the
workers' compensation fund for the quarters ending the thirtieth
day of September, two thousand five, and the thirty-first day of
December, two thousand five, which have not been collected by the
workers' compensation fund as of the thirty-first day of December,
two thousand five.
(k) "New fund liabilities" shall mean all claims payment
obligations (indemnity and medical expenses) for all claims,
actual and incurred but not reported, for any claim with a date
of injury or last exposure on or after the first day of July, two
thousand five: Provided, That new fund liabilities shall begin
with claims payments becoming due and owing on said claims on or
after the first day of January, two thousand six.
(l) "Old fund" shall mean a fund held by the state
treasurer's office consisting of those funds transferred to it
from the workers' compensation fund or other sources and those
funds due and owing the workers' compensation fund as of the thirtieth day of June, two thousand five, that are thereafter
collected. The old fund and assets therein shall remain property
of the state and shall not novate or otherwise transfer to the
company.
(m) "Old fund liabilities" mean all claims payment
obligations (indemnity and medical expenses), related liabilities
and appropriate administrative expenses necessary for the
administration of all claims, actual and incurred but not
reported, for any claim with a date of injury or last exposure on
or before the thirtieth day of June, two thousand five: Provided,
That old fund liabilities shall include all claims payments for
any claim, regardless of date of injury or last exposure, through
the thirty-first day of December, two thousand five: Provided,
however, That old fund liabilities shall include all claims with
dates of injuries or last exposure prior to the first day of July,
two thousand four, for bankrupt self-insured employers that had
defaulted on their claims obligations which have been recognized
by the commission in its actuarially determined liability number
as of the thirtieth day of June, two thousand five.
(n) "Private carrier" means any insurer or the legal
representative of an insurer authorized by the insurance
commissioner to provide workers' compensation insurance pursuant
to this chapter and which maintains an office in the state. The
term does not include a self-insured employer or private employers
but shall include any successor to the commission.
(o) "Uninsured employer fund" means a fund held by the state treasurer's office consisting of those funds transferred to it
from the workers' compensation fund and any other source.
Disbursements from the uninsured employer fund shall be upon
requisitions signed by the insurance commissioner and the
administrator of the fund, and as otherwise set forth in an exempt
legislative rule promulgated by the workers' compensation board
of managers.
(p) "Self-insured employer guaranty risk pool" shall be a
fund held by the state treasurer's office consisting of those
funds transferred to it from the guaranty pool created pursuant
to 85 CSR §19 (2004) and any future funds collected through
continued administration of that exempt legislative rule as
administered by the insurance commissioner. Disbursements shall
be made from the self-insured employer guaranty risk pool upon
requisitions signed by the insurance commissioner and the
administrator of the fund. The obligations of the fund shall be
as provided in 85 CSR §19 (2004). The company shall administer
the self-insured employer guaranty risk pool for a term and
administrative fee as provided in the administration of the old
fund.
(q) "Self-insured employer security risk pool" shall be a
fund held by the state's treasurer consisting of those funds paid
into it through the insurance commissioner's administration of 85
CSR §19 (2004). Disbursement from said fund shall be made from
the self-insured employer security risk pool upon requisitions
signed by the insurance commissioner and the administrator of the fund. The obligations of the fund shall be as provided in 85 CSR
§19: Provided, That said liabilities shall be limited to those
self-insured employers who default on their claims obligations
after the termination of the commission. The company shall
administer the self-insured employer security risk pool for a term
and administrative fee as provided in the administration of the
old fund.
(r) "Private carrier guaranty fund" shall be a fund held by
the state treasurer's office consisting of funds deposited
pursuant to this article. Disbursements shall be made from the
private carrier guaranty fund upon requisitions signed by the
insurance commissioner and the administrator of the fund. The
obligations of the fund shall be as provided in this article. The
company shall administer the private carrier guaranty fund for a
term and administrative fee as provided in the administration of
the old fund.
(s) "Assigned risk fund" shall be a fund held by the state
treasurer's office consisting of funds deposited pursuant to this
article. Disbursements shall be made from the assigned risk fund
upon requisitions signed by the insurance commissioner. The
obligations of the fund shall be as provided in this article.
(t) "Comprehensive financial plan" shall mean the plan
compiled by the director for acceptance by the insurance
commissioner identifying and forecasting cash flows, funding
sources, debt terms and structures, and scheduled amortization and
permanent resolution of all old fund liabilities. The comprehensive financial plan shall provide for the retirement of
the revenue bonds authorized by article two-d, chapter twenty-
three of this code and all realized and potential claims against
the old fund shall be fully reserved. The comprehensive financial
plan may include any other information the insurance commissioner
may require as a basis for managing the post-transition fiscal
soundness of the old fund.
§23-2C-3. Creation of employer mutual as successor organization
of the West Virginia workers' compensation
commission.
(a) On or before the first day of June, two thousand five,
the executive director may take such actions as are necessary to
establish an employers' mutual insurance company as a domestic,
private, nonstock, corporation to:
(1) Insure employers against liability for injuries and
occupational diseases for which their employees may be entitled
to receive compensation pursuant to chapter twenty-three of this
code and federal Longshore and Harbor Workers' Compensation Act,
33 U. S. C. §901, et seq.;
(2) Provide employer's liability insurance incidental to and
provided in connection with the insurance specified in paragraph
(1), including coal workers pneumoconiosis coverage and employer
excess liability coverage as provided in this chapter; and
(3) Transact such other kinds of property and casualty
insurance for which the company is otherwise qualified under the
provisions of this code.
(4) The company shall not sell, assign or transfer
substantial assets or ownership of the company.
(b) If the executive director establishes a domestic mutual
insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to
the provisions of this article shall, through a vote of a majority
of its provisional board, file its corporate charter and bylaws
with the insurance commissioner and apply for a license with the
insurance commissioner to transact insurance in this state.
Notwithstanding any other provision of this code, the insurance
commissioner shall act on the documents within fifteen days of the
filing by the company.
(2) In recognition of the workers' compensation insurance
liability insurance crisis in this state at the time of enactment
of this article and the critical need to expedite the initial
operation of the company, the Legislature hereby authorizes the
insurance commissioner to review the documentation submitted by
the company and to determine the initial capital and surplus
requirements of the company, notwithstanding the provisions of
section five-b, article three of chapter thirty-three. The
company shall furnish the insurance commissioner with all
information and cooperate in all respects necessary for the
insurance commissioner to perform the duties set forth in this
section and in other provisions of this chapter and chapter
thirty-three. The insurance commissioner shall monitor the
economic viability of the company during its initial operation on not less than a monthly basis, until such time as the commissioner
in his or her discretion, determines that monthly reporting is not
necessary. In all other respects the company shall be subject to
comply with the applicable provisions of chapter thirty-three of
this code.
(3) Subject to the provisions of subsection (4) of this
section, the insurance commissioner may waive other requirements
imposed on mutual insurance companies by the provisions of chapter
thirty-three as the insurance commissioner determines is necessary
to enable the company to begin insuring employers in this state
at the earliest possible date.
(4) Within forty months of the date of the issuance of its
license to transact insurance, the company shall comply with the
capital and surplus requirements set forth in subsection (a),
section five-b, article three, chapter thirty-three of this code
in effect on the effective date of this enactment, unless said
deadline is extended by the insurance commissioner.
(c) For the duration of its existence, the company is not and
shall not be considered a department, unit, agency, or
instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of the company, whenever incurred,
shall be the debts, claims, obligations, and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be
considered part of the general revenue fund of the state. The debts, claims, obligations, and liabilities of the company are not
and shall not be considered a debt of the state or a pledge of the
credit of the state.
(e) The company is not subject to provisions of article nine-
a, chapter six of this code; the provisions of chapter twenty-
nine-b of this code; the provisions of article three, chapter
five-a of this code; the provisions of article six, chapter
twenty-nine of this code; the provisions of article six-a of said
chapter; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon
said termination, private carriers, including the company, shall
not be subject to payment of premium taxes, surcharges and credits
contained in article three of chapter thirty-three of this code
on premiums received for coverage under this chapter. In lieu
thereof, the workers' compensation insurance market shall be
subject to the following:
(1) Each fiscal year, the insurance commissioner shall
calculate a percentage surcharge to be collected by each private
carrier from its policyholders. The surcharge percentage shall
be calculated by dividing the previous fiscal year's total
premiums collected plus deductible payments by all employers into
the portion of the insurance commissioner's budget amount
attributable to regulation of the private carrier market. This
resulting percentage shall be applied to each policyholder's
premium payment and deductible payments as a surcharge and
remitted to the insurance commissioner. Said surcharge shall be remitted within ten (10) days of receipt of premium payments,
whenever said payments are made by its insureds;
(2) Each fiscal year, the insurance commissioner shall
calculate a percentage surcharge to be remitted on a monthly basis
by self-insured employers and said percentage shall be calculated
by dividing previous year's self-insured payroll in the state into
the portion of the insurance commissioner's budget amount
attributable to regulation of the self-insured employer market.
This resulting percentage shall be applied to each self-insured
employer's monthly payroll and the resulting amount shall be
remitted as a regulatory surcharge by each self-insured employer.
The workers' compensation board of managers may promulgate a rule
for implementation of this section. The company, all other
private carriers, and all self-insured employers shall furnish the
insurance commissioner with all required information and cooperate
in all respects necessary for the insurance commissioner to
perform the duties set forth in this section and in other
provisions of this chapter and chapter thirty-three. The
surcharge shall be calculated so as to only defray the costs
associated with the administration of chapter twenty-three of this
code and the funds raised shall not be used for any other purpose.
(3) Upon termination of the commission, the company and all
other private carriers shall collect a premiums surcharge from
their policyholders equal to ten percent, or such higher or lower
rate as annually determined, by the first day of May of each year,
by the insurance commissioner to produce forty-five million dollars annually, of each policyholder's periodic premium amount
for workers' compensation insurance. Additionally, by the first
day of May each year, the self-insured employer community shall
be assessed a cumulative total of nine million dollars. The
methodology for the assessment shall be fair and equitable and
determined by exempt legislative rule issued by the workers'
compensation board of managers. The amount collected shall be
remitted to the insurance commissioner for deposit in the workers'
compensation debt reduction fund created in section five, article
two-d of this chapter.
(g) The new premiums surcharge imposed by subdivision (2),
subsection (f) of this section shall sunset and not be collectible
with respect to workers' compensation insurance premiums paid when
the policy is renewed on or after the first day of the month
following the month in which the governor certifies to the
Legislature that the revenue bonds issued pursuant to article two-
d, chapter twenty-three of this code have been retired and that
the unfunded liability of the old fund has been paid or has been
provided for in its entirety, whichever occurs last.
§23-2C-4. Governance and organization.
(a) (1) The commission shall implement the initial formation
and organization of the company as provided by this article.
(2) From the inception of the company, until the first day of
January, two thousand six, the company shall be governed by a
provisional board of directors consisting of the three-persons on
the executive committee of the workers' compensation board of managers and four members of the Legislature. Two members of the
West Virginia Senate and two members of the West Virginia House
of Delegates shall serve as advisory nonvoting members of the
board. The governor shall appoint the legislative members to the
board. No more than three of the legislative members shall be of
the same political party. The provisional board shall have the
authority to function as necessary to establish the company and
cause it to become operational, including the right to contract
on behalf of the company. Each voting board member shall receive
compensation of not more than three hundred fifty dollars per day
and actual and necessary expenses for each day during which he or
she is required to and does attend a meeting of the board.
(3) The provisional board shall develop procedures for the
nomination of the board of directors that will succeed the
provisional board on the first day of January, two thousand six,
and for the conduct of the election, to be held no later than the
first day of November, two thousand five, and shall give notice
of the election to the current subscribers to the workers'
compensation fund. These procedures shall be exempt from the
provisions of article three, chapter twenty-nine-a of this code.
(4) Except as limited by this section and applicable
insurance rules and statutes, the company may: (1) On its own;
(2) through the formation or acquisition of subsidiaries; or (3)
through a joint enterprise, offer:
(A) Workers' compensation insurance in a state other than
West Virginia to the extent it also provides workers' compensation or occupational disease insurance coverage to the employer
pursuant to chapter twenty-three of this code;
(B) Other workers' compensation products and services and
related products and services in West Virginia or other states;
and
(C) Other property and casualty insurance in West Virginia
and other states.
(b) Effective the first day of January, two thousand six, the
company shall be governed by a board of directors consisting of
seven directors, as follows:
(1) Three owners or officers of an entity that has purchased
or will immediately upon termination of the commission purchase
and maintain an active workers' compensation insurance policy from
the company. At least one shall be a certified public accountant
with financial management or pension or insurance audit expertise
and at least one shall be an attorney with financial management
experience.
(2) Two directors who have substantial experience as an
officer or employee of a company in the insurance industry, one
of whom is from a company with less than fifty employees;
(3) One director with general knowledge and experience in
business management who is an officer and employee of the company
and is responsible for the daily management of the company; and
(4) The chief executive officer of the company.
(c) The directors and officers of the company are to be
chosen in accordance with the articles of incorporation and bylaws of the company. The initial board of directors selected shall
serve for the following terms: (1) Two for four-year terms; (2)
two for three-year terms; (3) two for two-year terms; and (4) one
for a one-year term. Thereafter, the directors shall serve
staggered terms of four years. No director chosen may serve more
than two consecutive terms, except for the chief executive officer
of the company. Furthermore, owners, directors, or employees of
employers otherwise licensed to write workers' compensation
insurance in this state or licensed or otherwise authorized to act
as a third-party administrator shall not be eligible to be
nominated, appointed, elected or serve on the company's board of
directors.
(d) The executive director shall prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§23-2C-5 Creation of the industrial council; duties.
(a) There is hereby created within the office of the
insurance commissioner an industrial council.
(b) On or before the first day of July, two thousand five,
the governor with the advice and consent of the Senate, shall
appoint five voting members to the industrial council who meet the
requirements and qualifications prescribed in this subsection.
Two members of the West Virginia Senate and two members of the
West Virginia House of Delegates shall serve as advisory nonvoting
members of the board. The governor shall appoint the legislative members to the board. No more than three of the legislative
members may be of the same political party. The insurance
commissioner shall serve as an advisory nonvoting member of the
board.
(1) (A) Five members shall be appointed by the governor with
the advice and consent of the Senate for terms that begin upon
appointment after the effective date of this legislation and
expire as follows:
(i) One member shall be appointed for a term ending the
thirtieth day of June, two thousand seven;
(ii) Two members shall be appointed for a term ending the
thirtieth day of June, two thousand eight; and
(iii) Two members shall be appointed for a term ending the
thirtieth day of June, two thousand nine.
(B) Except for appointments to fill vacancies, each
subsequent appointment shall be for a term ending the thirtieth
day of June of the fourth year following the year the preceding
term expired. In the event a vacancy occurs, it shall be filled
by appointment for the unexpired term. A member whose term has
expired shall continue in office until a successor has been duly
appointed and qualified. No member of the council may be removed
from office by the governor except for official misconduct,
incompetency, neglect of duty or gross immorality.
(C) No appointed member may be a candidate for or hold
elected office. Members may be reappointed for no more than two
full terms.
(2) Each of the appointed voting members of the council shall
be appointed based upon his or her demonstrated knowledge and
experience to effectively accomplish the purposes of this chapter.
They shall meet the minimum qualifications as follows:
(A) Each shall hold a baccalaureate degree from an accredited
college or university: Provided, That no more than one of the
appointed voting members may serve without a baccalaureate degree
from an accredited college or university if the member has a
minimum of fifteen years' experience in his or her field of
expertise as required in this subdivision;
(B) Each shall have a minimum of ten years' experience in his
or her field of expertise. The governor shall consider the
following guidelines when determining whether potential candidates
meet the qualifications of this subsection: Expertise in
insurance claims management; expertise in insurance underwriting;
expertise in the financial management of pensions or insurance
plans; expertise as a trustee of pension or trust funds of more
than two hundred beneficiaries or three hundred million dollars;
expertise in workers' compensation management; expertise in loss
prevention and rehabilitation; expertise in occupational medicine
demonstrated by licensure as a medical doctor in West Virginia and
experience, board certification or university affiliation; or
expertise in similar areas of endeavor;
(C) At least one shall be a certified public accountant with
financial management or pension or insurance audit expertise; at
least one shall be an attorney with financial management experience; one shall be an academician holding an advanced degree
from an accredited college or university in business, finance,
insurance or economics; and one shall represent organized labor.
(D) The council shall appoint one member to serve as
chairperson. The chairperson shall serve for a one-year term and
may serve more than one consecutive term. The council shall hold
meetings at the request of the chairperson or at the request of
at least three of the members of the council, but no less
frequently than once every three months. The chairperson shall
determine the date and time of each meeting. Three members of the
council constitute a quorum for the conduct of the business of the
council. No vacancy in the membership of the council shall impair
the right of a quorum to exercise all the rights and perform all
the duties of the council. No action shall be taken by the
council except upon the affirmative vote of three members of the
council.
(3) (A) Each voting appointed member of the council shall
receive compensation of not more than three hundred fifty dollars
per day for each day during which he or she is required to and
does attend a meeting of the board.
(B) Each voting appointed member of the council is entitled
to be reimbursed for actual and necessary expenses incurred for
each day or portion thereof engaged in the discharge of official
duties in a manner consistent with guidelines of the travel
management office of the department of administration.
(C) Each member of the council shall be provided appropriate liability insurance, including, but not limited to, errors and
omissions coverage, without additional premium, by the state board
of risk and insurance management established pursuant to article
twelve, chapter twenty-nine of this code.
(c) The industrial council shall:
(1) In consultation with the insurance commissioner,
establish operating guidelines and policies designed to ensure the
effective administration of the workers' compensation insurance
market in West Virginia.
(2) Review and approve, reject or modify rules that are
proposed by the insurance commissioner for operation and
regulation of the workers' compensation insurance market before
the rules are filed with the secretary of state. The rules
adopted by the industrial council are not subject to sections nine
through sixteen, inclusive, article three, chapter twenty-nine-a
of this code. The industrial council shall follow the remaining
provisions of said chapter for giving notice to the public of its
actions and for holding hearings and receiving public comments on
the rules.
(3) In accordance with the laws and rules of West Virginia,
establish and monitor performance standards and measurements to
ensure the timeliness and accuracy of activities performed under
chapter twenty-three of this code and applicable rules.
(4) Submit for approval by the Legislature, as an isolated
and clearly discernable component of the insurance commissioner's
budget, a budget for the sufficient administrative resources and funding requirements necessary for their duties under this
article.
(5) Perform all record and information gathering functions
necessary to carry out its duties under this code.
(6) Every two years, conduct an overview of the safety
initiatives currently being utilized or which could be utilized
in the workers' compensation insurance market and report said
finding to the joint committee on government and finance. Each
private carrier and self-insured employer shall cooperate with the
council in the performance of its duties to evaluate insurer
services provided to employers in controlling losses and providing
information on the prevention of industrial accidents or
occupational diseases. Each employer, private carrier and self-
insured employer shall provide to the council, upon request, any
information, statistics or data in its records requested by the
council in the performance of these duties.
(7) Perform all other duties as specifically provided in this
chapter for the industrial council and those duties incidental
thereto.
(8) Establish a method of indexing claims of injured workers
that will make information concerning the injured workers of one
insurer available to other insurers.
(A) Every insurer shall provide information, as required by
the industrial council, for establishing and maintaining the
claims index.
(B) If an employee files a claim with an insurer, the insurer is entitled to receive from the administrator a list of the prior
claims of the employee. If the insurer desires to inspect the
files related to the prior claims, he or she must obtain the
written consent of the employee or the insurance commissioner or
his or her designee. The use of the information contained in the
files is limited to the administration of the claim.
§23-2C-6. Creation of new fund, old fund, mutualization
transition fund, uninsured employer fund, self-
insured employer guaranty risk pool, self-insured
employer security risk pool, private carrier
guaranty fund, and assigned risk fund.
(a) Effective upon the date upon which this enactment is made
effective by the Legislature, there is hereby created in the state
treasury a "workers' compensation old fund", "workers'
compensation new fund", "mutualization transition fund", "workers'
compensation uninsured employers' fund", "self-insured employer
guaranty risk pool", "self-insured employer security risk pool",
"private carrier guaranty fund" and an "assigned risk fund". The
executive director of the workers' compensation commission shall
have full authority to administer the old fund, the new fund, the
mutualization transition fund, the uninsured employers' fund, the
self-insured employer guaranty risk pool, the self-insured
employer security risk pool and the private carrier guaranty fund
until termination of the commission. As soon as practicable upon
the establishment of the mutualization transition fund, the
executive director shall cause thirty-five million dollars to be transferred from the workers' compensation fund into the
mutualization transition fund. All unencumbered funds remaining
in the mutualization transition fund as of termination of the
commission shall be transferred into the private carrier guaranty
fund or, if the proclamation set forth in this article has not
been issued, back to the workers' compensation fund. Expenditures
from the funds established by this section shall be upon
appropriation of the Legislature except that during the fiscal
year ending the thirtieth day of June, two thousand five,
expenditures from the mutualization transition fund up to amounts
expended for the purposes of this article are authorized rather
than pursuant to an appropriation by the Legislature.
(b) If the proclamation set forth in this article is issued,
then upon termination of the commission, the funds contained in
the workers' compensation fund shall be disbursed as follows: (1)
A minimum of three hundred million dollars into the workers'
compensation old fund, the exact amount of which shall be set
forth in the governor's proclamation provided in this article; (2)
five million dollars into the uninsured employers' fund; and (3)
the remainder into the new fund. Additionally, the funds
contained in the guaranty pool provided in 85 CSR §19 (2004) shall
be transferred into the self-insured employer guaranty risk pool
created in this article.
§23-2C-7. Custody, investment and disbursement of funds.
(a) The state treasurer shall be the custodian of the
workers' compensation old fund, workers' compensation uninsured employers' fund, the self-insured employer guaranty risk pool, the
self-insured employer security risk pool, the private carrier
guaranty fund and the assigned risk pool and moneys payable to
each of these funds shall be deposited in the state treasury to
the credit of the funds. Each fund shall be a separate and
distinct fund upon the books and records of the auditor and
treasurer. Disbursements from these funds shall be made upon
requisitions signed by the executive director and, effective upon
termination of the commission, the administrator of the funds and
the insurance commissioner. The workers' compensation old fund,
the workers' compensation uninsured employer fund, the self-
insured employer guaranty risk pool, self-insured employer
security risk pool, the private carrier guaranty fund and the
assigned risk fund are participant plans as defined in section
two, article six, chapter twelve of this code and are subject to
the provisions of section nine-a of said article. The funds may
be invested by the investment management board in accordance with
said article.
(b) If the governor issues the proclamation set forth in this
article, then, effective upon termination of the commission, all
remaining assets and funds contained in the workers' compensation
fund which are payable to the new fund shall be so disbursed and
paid to the company by communication of the executive director to
the state treasurer or other appropriate state official prior to
the termination of the commission.
§23-2C-8. West Virginia uninsured employers' fund.
(a) The West Virginia uninsured employers' fund shall be
governed by the following:
(1) All money and securities in the fund must be held by the
state treasurer as custodian thereof to be used solely as provided
in this article.
(2) The state treasurer may disburse money from the fund only
upon written requisition of the insurance commissioner and
administrator of the fund.
(3) The insurance commissioner shall assess each private
carrier and all self-insured employers an amount to be deposited
in the fund. The assessment may be collected by each private
carrier from its policyholders in the form of a policy surcharge.
To establish the amount of the assessment, the insurance
commissioner shall determine the amount of money necessary to
maintain an appropriate balance in the fund for each fiscal year
and shall allocate a portion of that amount to be payable by
private carriers, a portion to be payable by self-insured
employers, and a portion to be paid by any other appropriate
group. After allocating the amounts payable, the insurance
commissioner shall apply an assessment rate to the:
(A) Private carriers that reflects the relative hazard of the
employments covered by the private carriers, results in an
equitable distribution of costs among the private carriers and is
based upon expected annual premiums to be received;
(B) Self-insured employers that results in an equitable
distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims; and
(C) Any other categories of payees that results in an
equitable distribution of costs among them and is based upon
expected annual expenditures for claims or premium to be received.
(4) The workers' compensation board of managers may adopt
rules for the establishment and administration of the assessment
methodologies, rates, payments and any penalties that the workers'
compensation board of managers determines are necessary to carry
out the provisions of this section.
(b) Payments from the fund shall be governed by the
following:
(1) Except as otherwise provided in this subsection, an
injured worker of any employer required to be covered under this
chapter who has failed to obtain coverage may receive compensation
from the uninsured employers' fund if:
(A) He or she meets all jurisdictional and entitlement
provisions of this chapter;
(B) He or she files a claim with the insurance commissioner;
and
(C) He or she makes an irrevocable assignment to the
insurance commissioner a right to be subrogated to the rights of
the injured employee.
(2) If the insurance commissioner receives a claim, it shall
immediately notify the employer of the claim. For the purposes
of this section, the employer has the burden of proving that it
provided mandatory workers' compensation insurance coverage for the employee or that it was not required to maintain workers'
compensation insurance for the employee. If the employer meets
this burden, benefits shall not be paid from the fund.
(3) Any employer who has failed to provide mandatory coverage
required by the provisions of chapter twenty-three of this code
is liable for all payments made on its behalf, including any
benefits, administrative costs and attorney's fees paid from the
fund or incurred by the insurance commissioner.
(4) The insurance commissioner:
(A) May recover from the employer the payments made by it,
any accrued interest and attorney fees and costs by bringing a
civil action in a court of competent jurisdiction.
(B) May enter into a contract with any person, including the
administrator of the uninsured employers' fund, to assist in the
collection of any liability of an uninsured employer.
(C) In lieu of a civil action, may enter into an agreement or
settlement regarding the collection of any liability of an
uninsured employer.
(5) The insurance commissioner shall:
(A) Determine whether the employer was insured within five
days after receiving notice of the claim from the employee.
(B) Assign the claim to the administrator of the fund for
administration and, if appropriate, payment of compensation.
(6) Upon determining whether the claim is accepted or denied,
the fund administrator shall notify the injured employee and the
named employer of its determination.
(7) Any party aggrieved by a determination made by the
insurance commissioner or the fund administrator regarding the
claims decisions made pursuant to this section may appeal that
determination by filing a protest with the office of judges as set
forth in article five of this chapter.
(8) An uninsured employer is liable for the interest on any
amount paid on his or her claims from the fund. The interest must
be calculated at a rate set in accordance with the provisions of
section thirteen, article two of this chapter, compounded monthly,
from the date the claim is paid from the account until payment is
received by the insurance commissioner or fund administrator from
the employer.
(9) Attorney's fees recoverable by the insurance commissioner
or administrator pursuant to this section must be paid at the
usual and customary rate for that attorney.
(10) In addition to any other liabilities provided in this
section, the insurance commissioner or the fund administrator may
impose an administrative fine of not more than ten thousand
dollars against an employer if the employer fails to provide
mandatory coverage required by this chapter. All fines and other
moneys collected pursuant to this section shall be deposited into
the uninsured employer fund.
(c) The company shall be the administrator of the uninsured
employers' fund from the fund's inception and thereafter for seven
years and shall be charged with all authority and responsibilities
incidental to the administration of the fund which are necessary to accomplish the express provisions and the intent of this
chapter. The company shall be paid a monthly administrative fee
of five percent of claims paid each month for the administration
of the fund through the thirty-first day of December, two thousand
ten, and four percent of claims paid each month for the
administration of the fund thereafter through the thirty-first day
of December, two thousand twelve. The company's administrative
duties shall include, but not be limited to, receipt of all
claims, processing said claims, providing for the payment of said
claims through the state treasurer's office or other applicable
state agency, and ensuring, through the selection and assignment
of counsel, that claims decisions are properly defended. The
administration of the fund after this seven year period shall be
subject to the procedures set forth in article three, chapter
five-a of this code.
(d) Employees of self-insured employers who are injured while
employed by a self-insured employer are ineligible for benefits
from the West Virginia uninsured employer fund.
§23-2C-9. West Virginia private carrier guaranty fund.
(a) The private carrier guaranty fund established in article
two-c of this chapter shall provide benefits to those employees
whose employers' private carrier is found to be insolvent by a
court of competent jurisdiction in the insurer's state of domicile
or has otherwise defaulted on its payment obligations and is
subject to an administrative action by the insurance commissioner.
(b) The private carrier guaranty fund shall be funded through assessments on each private carrier of workers' compensation
insurance. All assessments shall be deposited in the private
carrier guaranty fund established in this article. The assessment
may be collected by each carrier from its policyholders in the
form of a policy surcharge. To establish the amount of the
assessment, the insurance commissioner shall determine the amount
of money necessary to pay outstanding obligations of the
defaulting private carrier and to maintain an appropriate balance
in the fund for each fiscal year. The insurance commissioner
shall apply an assessment rate to the private carriers that
reflects the relative hazard of the employments covered by the
private carriers, results in an equitable distribution of costs
among the private carriers and is based upon expected annual
premiums to be received.
(c) A defaulting private carrier shall not be permitted to
write any workers' compensation insurance in this state until it
has reimbursed the private carrier guaranty fund for any payments
made for the private carrier's unpaid obligations.
(d) Private carriers providing workers' compensation
insurance shall not be subject to article twenty-six, chapter
thirty-three of this code for any premiums received for coverage
provided under this chapter.
(e) The insurance commissioner may promulgate rules to
implement the provisions of this section.
§23-2C-10. West Virginia adverse risk assignment.
(a) To qualify for adverse risk assignment, an employer must have been categorically declined coverage by at least two insurers
that are not affiliated with each other. The employer shall have
the burden of establishing that at least two insurers are
unwilling to provide coverage at any premium level that is
reasonably related to the risk presented by the employer.
(b) To qualify for adverse risk assignment, the employer
shall make an application to the insurance commissioner and shall
submit the evidence described in subsection (a) of this section.
(c) Upon receipt of the adverse risk assignment application,
the insurance commissioner shall determine whether subsection (a)
of this section has been satisfied. If so, the insurance
commissioner shall, through the assigned risk fund, provide
coverage to the applicant at a premium level to be determined by
the insurance commissioner, which premiums shall be consistent
with generally accepted accounting principles, actuarially sound,
and consistent with classification and rate-making methodologies
found in the insurance industry. All rates, surcharges or
assessments and assignment of adverse risk employers shall be fair
and equitable and financially sound in accordance with generally
accepted accounting principles.
(d) The coverage provided by this section shall be pursuant
to a pooling arrangement managed by the insurance commissioner.
The insurance commissioner may contract with any third party,
including any private carrier, to administer this pooling
arrangement. Costs necessary to operate this pooling arrangement
shall be funded by premiums paid by covered employers, surcharges, if any, to covered employers and assessments to private carriers
providing workers' compensation insurance in this state.
(e) The workers' compensation board of managers shall
promulgate a rule for the establishment of the pooling mechanism
and administration thereof; assessment of private carriers; and
rating structure with differing rate tiers for insureds.
(f) As often as necessary, the insurance commissioner may
assess all private carriers providing workers' compensation
insurance in this state such funds as are necessary to cover any
deficiencies in the pooling arrangement. The assessments shall
result in an equitable distribution of costs among private
carriers based upon premiums received by the private carriers.
Assessments made upon private carriers pursuant to this section
may be collected by each carrier from its policyholders in the
form of a surcharge.
§23-2C-11. Transfer of assets from new fund to the mutual
insurance company established as a successor to
the commission; transfer of commission employees.
(a) If the governor determines that:
(1) The old fund assets are sufficient to satisfy the old
fund liabilities or that a revenue source has been secured to
satisfy the old fund liabilities as they occur from time to time;
(2) The executive director has established a mutual insurance
company pursuant to this code;
(3) The comprehensive financial plan has been accepted by the
insurance commissioner; and
(4) The commissioner of insurance has determined that the
mutual insurance company established by the executive director
qualifies:
(A) For a certificate of authority to transact workers'
compensation insurance in this state; and
(B) For the authority to issue nonassessable policies of
insurance pursuant to this code, the governor shall issue a
proclamation stating that the events described in subdivisions (1)
through (4), inclusive, of this subsection have occurred, along
with the exact amount of funds to be transferred from the workers'
compensation fund to the old fund. The governor shall establish
the effective date of the termination of the commission in the
proclamation.
(b) If the governor issues said proclamation:
The executive director shall cause the transfer to the mutual
insurance company established pursuant this code the premiums and
other money paid or payable, transferred or transferable from the
workers' compensation fund into the new fund, old fund, and any
other applicable fund. The investment management board, state
treasurer and any other agency or board shall fully cooperate in
the transfer of the new fund assets.
(c) Upon the issuance of the proclamation set forth in
subsection (a) of this section, all commission employees assigned
regulatory duties shall transfer, along with the assets necessary
to support the functions being performed, from the commission to
the insurance commissioner: Provided, That the executive director shall, in consultation with the insurance commissioner, have sole
authority to identify and select the employees that are employed
by the commission to be assigned and transferred to the insurance
commission. For purposes of this section, regulatory duties shall
include, but may not be limited to, self-insurance, rating
services, office of judges and board of review.
(d) The division of personnel shall cooperate fully by
assisting in all personnel activities necessary to expedite all
changes for the commission and the insurance commissioner. Due
to the emergency currently existing at the commission and the
urgent need to develop fast, efficient claims processing,
management and administration, the insurance commissioner is
hereby granted authority to reorganize internal functions and
operations and to delegate, assign, transfer, combine, establish,
eliminate and consolidate responsibilities and duties to and among
the positions transferred under the authority of this subsection.
These actions shall not be subject to the grievance process. The
provisions of this subsection are not effective after the thirty-
first day of December, two thousand six.
§23-2C-12. Certain personnel provisions governing employees
laid-off by the mutual during its initial year of
operation.
(a) If a mutual insurance company is established pursuant to
this article, a person who:
(1) Is employed on the first day of January, two thousand
five, by the commission;
(2) Was employed by the commission upon its termination; and
(3) Is laid off by the company on or before the thirtieth day
of June, two thousand eight, is entitled to be placed on an
appropriate reemployment list maintained by the department of
personnel and to be allowed a preference on that list. The
department of personnel shall maintain such an employee on the
reemployment list indefinitely, or until the employee has declined
three offers of employment at a paygrade substantially similar to
that of his or her position upon termination of the commission,
or until he or she is reemployed by the executive branch of state
government, whichever occurs earlier.
(b) The executive director may select former bureau of
employment program employees who are, upon the termination of the
commission, employees of the office of information services and
communication and who enter into an employment contract with the
company before the first day of December, two thousand five, to
become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-13. Certain retraining benefits to those employees laid-
off by the mutual during its first year
of operation.
If a domestic mutual insurance company is established
pursuant to this article, the chief executive officer of the
company shall enter into an agreement with the department of
personnel for the provision of services and training to an
employee of the company who is laid off during the first year of the company's operation and requires additional training to obtain
other gainful employment. The department of personnel shall
administer the program. The fees required for those services and
training shall be in an amount established by the department or
personnel, must not exceed two million dollars, in the aggregate,
and shall be paid out of the mutualization transition fund. The
executive director may select former bureau of employment program
employees who are, upon the termination of the commission,
employees of the office of information services and communication
and who enter into an employment contract with the company before
the first day of December, two thousand five, to become employees
of the company and said employees shall be afforded the benefits
of this section.
§23-2C-14. Certain benefits provided to commission employees.
(a) If a domestic mutual insurance company is created
pursuant to this article and becomes operational as a private
carrier, then the company shall pay the full actuarial cost to
purchase years of credit for not more than five years of service
under the state's public employee retirement system to those
individuals who retire upon termination of the commission or who
become employed by the company upon termination of the commission.
The amount purchased per employee shall be calculated by allowing
six months of credit to be purchased for each year of service with
the commission or its predecessors, including the bureau of
employment programs, and shall be paid out of the mutualization
transition fund. If upon said purchase, an employee does not vest in the public employee retirement plan, the employee can receive
his or her contribution from the retirement plan and an amount
equal to the employer's contribution to be payable out of the
mutualization transition fund.
(b) The public employees' retirement system shall take such
action as is necessary to carry out the provisions of subsection
(a).
(c) All employees employed by the commission on the
thirty-first day of December, two thousand four, who are employed
by the company immediately upon termination of the commission
shall have the following options related to their accrued sick
leave: (1) Freeze said accrued sick leave at the balance that
existed as of the thirty-first day of December, two thousand four,
and use said sick leave at the time of retirement to purchase
insurance through the public employee insurance agency. Any
related charges shall be paid from the old fund; have their
accrued sick leave irrevocably surrendered in exchange for one
hour of pay for each hour of accrued sick leave surrendered to be
payable from the mutualization transition fund.
(d) The executive director may select former bureau of
employment program employees who are, upon the termination of the
commission, employees of the office of information services and
communication and who enter into an employment contract with the
company before the first day of December, two thousand five, to
become employees of the company and said employees shall be
afforded the benefits of this section.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all
subscriber policies with the commission shall novate to the
company and all employers otherwise shall purchase workers'
compensation insurance from the company, unless permitted to self-
insure their obligations. The company shall assume responsibility
for all new fund obligations of the subscriber policies which
novate to the company or which are issued thereafter. Each
subscriber whose policy novates to the company shall also have its
advanced deposit credited to its account with the company.
Employers purchasing workers' compensation insurance from the
company shall have the right to designate a representative or
agent to act on its behalf in any and all matters relevant to
coverage and claims as administered by the company.
(b) Effective the first day of July, two thousand eight, an
employer may elect to: (1) Continue to purchase workers'
compensation insurance from the company; (2) purchase workers'
compensation insurance from another private carrier licensed and
otherwise authorized to transact workers' compensation insurance
in this state; or (3) self-insure its obligations if it satisfies
all requirements of this code to so self-insure and is permitted
to do so: Provided, That all state and local governmental bodies,
including, but not limited to, all counties and municipalities and
their subdivisions and including all boards, colleges,
universities and schools, shall continue to purchase workers'
compensation insurance from the company through the thirtieth day of June, two thousand twelve. The company and other private
carriers shall be permitted to sell workers' compensation
insurance through licensed agents in the state. To the extent
that a private carrier markets workers' compensation insurance
through a licensed agent, it shall be subject to all applicable
provisions of chapter thirty-three of the code. All employers'
must immediately notify the insurance commissioner of its private
carrier and any change thereto.
(c) An employer may elect to change its private insurer
carrier on or after the first day of July, two thousand eight, if
the employer has:
(1) Given at least thirty days' notice to the insurance
commissioner of the change of insurer; and
(2) Furnished evidence satisfactory to the insurance
commissioner that the payment of compensation has otherwise been
secured.
(d) Each private carrier and employer shall notify the
insurance commissioner if an employer has changed his or her
insurer or has allowed his or her insurance to lapse within
twenty-four hours or by the end of the next working day, whichever
is later, after the insurer has notice of the change or lapse.
Every employer shall post a notice upon its premises in a
conspicuous place identifying its industrial insurer. The notice
must include the insurer's name, business address and telephone
number and the name, business address and telephone number of its
nearest adjuster in this state. The employer shall at all times maintain the notice provided for the information of his or her
employees. Release of employer policy information and status by
the industrial council and the insurance commissioner shall be
governed by section four, article one, chapter twenty-three of
this code. The insurance commissioner shall collect and maintain
information related to officers, directors and ten percent or more
owners of each carrier's policyholders. The private carrier shall
provide said information to the insurance commissioner.
(e) Any rule promulgated by the workers' compensation board
of managers empowering agencies of this state to revoke or refuse
to grant, issue or renew any contract, license, permit,
certificate or other authority to conduct a trade, profession or
business to or with any employer whose account is in default with
the commission shall be fully enforceable by the insurance
commissioner against the employer in policy default with a private
carrier.
(f) Effective the first day of July, two thousand eight, the
company may decline to offer coverage to any applicant. Effective
the first day of July, two thousand eight, the company and private
carriers may cancel a policy or decline to renew a policy upon the
issuance of sixty days written advance notice to the policyholder:
Provided, That cancellation of the policy by the carrier for
failure of consideration to be paid by the policyholder is
effective after fifteen days advance written notice of
cancellation to the policyholder.
§23-2C-16. Administration of old fund.
(a) Notwithstanding any provision of this code to the
contrary, the company shall be the administrator of the workers'
compensation old fund from inception of the company and thereafter
for seven years and shall be charged with all authority and
responsibilities incidental to the administration of the old fund
which are necessary to accomplish the express provisions and the
intent of this chapter. The company shall be paid a monthly
administrative fee of five percent of claims paid each month for
the administration of the old fund through the thirty-first day
of December, two thousand ten, and four percent of claims paid
each month for the administration of the old fund thereafter
through the thirty-first day of December, two thousand twelve.
The company's administrative duties shall include, but not be
limited to, receipt of all claims, processing said claims,
providing for the payment of said claims through the state
treasurer's office or other applicable state agency, and ensuring,
through the selection and assignment of counsel, that claims
decisions are properly defended. The administration of the old
fund after this seven-year period shall be subject to the
procedures set forth in article three, chapter five-a of this
code.
(b) The insurance commissioner may contract or employ counsel
to perform legal services related solely to the collection of
moneys due the old fund, including the collection of moneys due
the old fund and enforcement of repayment agreements entered into
for the collection of moneys due on or before the thirtieth day of June, two thousand five, in any administrative proceeding and
in any state or federal court.
(c) The insurance commissioner shall review claims determined
to be payable from the old fund and may contest the determination
pursuant to the provisions of article five of this chapter.
(d) The insurance commissioner may conduct or cause to be
conducted an annual audit to be performed on the old fund.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this
chapter, it shall be deemed to be reformed to conform with this
chapter.
(b) The workers' compensation board of managers shall
promulgate a rule which prescribes the requirements of a basic
policy to be used by private carriers.
(c) A private carrier may enter into a contract to have his
or her plan of insurance administered by a third-party
administrator, including the company. A private carrier shall not
enter into a contract with any person for the administration of
any part of the plan of insurance unless that person maintains an
office in this state and has registered with the insurance
commissioner of this state in accordance with article forty-six,
chapter thirty-three of the code.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more
organizations for managed care to provide comprehensive medical
and health care services to employees for injuries and diseases
that are compensable pursuant to chapter twenty-three of this
code. The managed care plan must be approved pursuant to the
provisions of section three, article four of this chapter.
(2) Require employees to obtain medical and health care
services for their industrial injuries from those organizations
and persons with whom the self-insured employer, or private
carrier has contracted or as the self-insured employer or private
carrier otherwise prescribes.
(3) Except for emergency care, require employees to obtain
the approval of the self-insured employer or private carrier
before obtaining medical and health care services for their
industrial injuries from a provider of health care who has not
been previously approved by the self-insured employer or private
carrier.
(e) A private carrier or self-insured employer may inquire
about and request medical records of an injured employee that
concern a preexisting medical condition that is reasonably related
to the industrial injury of that injured employee.
(f) An injured employee must sign all medical releases
necessary for the insurer of his or her employer to obtain
information and records about a preexisting medical condition that
is reasonably related to the industrial injury of the employee and
that will assist the insurer to determine the nature and amount of workers' compensation to which the employee is entitled.
§23-2C-18. Ratemaking; Insurance Commissioner.
(a) For the fiscal year beginning the first day of July, two
thousand six, the company shall charge the actuarially determined
base rates for the fiscal year. The base rates shall be
calculated by the company and submitted for approval by the
insurance commissioner.
(b) For the fiscal year beginning the first day of July, two
thousand seven, the company shall charge the actuarially
determined base rates for said fiscal year. The base rates shall
be calculated by the company and submitted for approval by the
insurance commissioner.
(c) Effective for the fiscal year beginning the first day of
July, two thousand eight, all private carriers' rates shall be
governed by the following:
(1) For the period beginning on the first day of July, two
thousand eight, and ending on the thirtieth day of June, two
thousand nine, no more than five percent variance from the base
rates established by the insurance commissioner.
(2) For the period beginning on the first day of July, two
thousand nine, and ending on the thirtieth day of June, two
thousand ten, no more than ten percent variance from the base
rates established by the insurance commissioner.
(d) For the period beginning on the first day of July, two
thousand six, through the thirtieth day of June, two thousand ten,
the company and, when applicable, a private carrier, may continue to calculate experience modification factors and other related
rating modification methodologies to adequately insure individual
employer risks.
(e) The variances provided in this section are only
applicable to base rates and shall be exclusive of experience
modification and other related adjustments, including surcharges
imposed by this chapter.
(f) For the period beginning the first day of July, two
thousand ten, and thereafter, the insurance commissioner shall set
base rates for approved classifications and thereafter in
accordance with rules established in accordance with subsection
nine of this section. Said rates shall be released to the public
at least ninety days prior to the first day of July each year.
Within thirty days from this release date, private carriers shall
submit to the insurance commissioner their proposed rates, which
may be higher than the base rates established by the insurance
commissioner. The insurance commissioner retains authority to
disapprove rates in effect if it is determined that the rates are
not in compliance with the following:
(1) Rates must not be excessive, inadequate or unfairly
discriminatory, nor may an insurer charge any rate which if
continued will have or tend to have the effect of destroying
competition or creating a monopoly.
(2) The insurance commissioner may disapprove rates if there
is not a reasonable degree of price competition at the consumer
level with respect to the class of business to which they apply. In determining whether a reasonable degree of price competition
exists, the insurance commissioner shall consider all relevant
tests, including:
(A) The number of insurers actively engaged in the class of
business and their shares of the market;
(B) The existence of differentials in rates in that class of
business;
(C) Whether long-run profitability for private carriers
generally of the class of business is unreasonably high in
relation to its risk;
(D) Consumers' knowledge in regard to the market in question;
and
(E) Whether price competition is a result of the market or is
artificial. If competition does not exist, rates are excessive
if they are likely to produce a long-run profit that is
unreasonably high in relation to the risk of the class of
business, or if expenses are unreasonably high in relation to the
services rendered.
(3) Rates are inadequate if they are clearly insufficient,
together with the income from investments attributable to them,
to sustain projected losses and expenses in the class of business
to which they apply.
(4) One rate is unfairly discriminatory in relation to
another in the same class if it clearly fails to reflect equitably
the differences in expected losses and expenses. Rates are not
unfairly discriminatory because different premiums result for policyholders with similar exposure to loss but different expense
factors, or similar expense factors but different exposure to
loss, so long as the rates reflect the differences with reasonable
accuracy. Rates are not unfairly discriminatory if they are
averaged broadly among persons insured under a group, franchise
or blanket policy.
(g) The rate-making provisions and premium provisions
contained in article two of this chapter shall not be applicable
to the company or other private carriers. The workers'
compensation board of managers, in consultation with the insurance
commissioner, shall issue an exempt legislative rule to govern
ratemaking and premium collection by the company and other private
carriers.
§23-2C-19. Special provisions as to private carrier premium
collection.
(a) Each employer who is required to purchase and maintain
workers' compensation insurance or who elects to purchase workers'
compensation insurance shall pay a premium to a private carrier.
Each carrier shall notify its policyholders of the mandated
premium payment methodology and under what circumstances a
policyholder will be found to be in policy default.
(b) An employer who is required to purchase and maintain
workers' compensation insurance but fails to do so or otherwise
enters policy default shall be deprived of the benefits and
protection afforded by this chapter, including section six,
article two of this chapter, and the employer is liable as provided in section eight of said article. The policy defaulted
employer's liability under these sections is retroactive to day
the policy default occurs. The private carrier shall notify the
policy defaulted employer of the method by which the employer may
be reinstated with the private carrier.
(c) A private carrier is authorized to commence a civil
action against an employer who, after due notice, defaults on any
payment. If judgment is against the employer, the employer shall
pay the costs of the action. Upon prevailing in a civil action,
the private carrier is entitled to recover its attorneys' fees and
costs of action from the employer.
(d) In addition to the provisions of subsection (a) of this
section, any payment, interest and penalty due and unpaid under
this chapter is a personal obligation of the employer, its
officers and its directors, immediately due and owing to the
private carrier and shall, in addition, be a lien enforceable
against all the property of the employer: Provided, That the lien
shall not be enforceable as against a purchaser (including a lien
creditor) of real estate or personal property for a valuable
consideration without notice, unless docketed as provided in
section one, article ten-c, chapter thirty-eight of this code:
Provided, however, That the lien may be enforced as other judgment
liens are enforced through the provisions of said chapter and the
same is considered deemed by the circuit court to be a judgment
lien for this purpose.
(e) The secretary of state of this state shall withhold the issuance of any certificate of dissolution or withdrawal in the
case of any corporation organized under the laws of this state or
organized under the laws of any other state and admitted to do
business in this state, until notified by its private carrier that
all payments, interest and penalties thereon against the
corporation which is an employer under this chapter have been paid
or that provision satisfactory to the private carrier has been
made for payment.
(f) In addition to any other liabilities provided in this
section, the insurance commissioner may impose an administrative
fine of not more than ten thousand dollars against an employer if
the employer fails to provide mandatory coverage required by the
this chapter. Further, prior to providing an applicant employer
with coverage mandated in this chapter, all private carriers shall
exercise reasonable due diligence to ensure that an employer
applicant has not been in policy default with another carrier or
in default with the commission. If it is discovered that the
employer applicant remains in policy default with another carrier
or the commission, the company or new carrier shall not provide
the coverage mandated by this chapter until such time as the pre-
existing policy default is cured. Any provider violating this
provision may be fined not more than ten thousand dollars by the
insurance commissioner.
(g) The company and the insurance commissioner shall be
provided extraordinary powers to collect any premium amounts
payable to the workers' compensation fund or the new fund and due from the first day of July, two thousand five, through the
thirtieth day of June, two thousand eight. Those powers shall
include: (1) Withholding of coverage effective the first day of
January, two thousand six. Employers without coverage shall
immediately be deprived of the benefits and protection afforded
by this chapter, including section six, article two of this
chapter and the employer is liable as provided in section eight
of said article; (2) the right to maintain a civil action against
all officers and directors of the employer individually for
collection of the premium owed; and (3) the right to immediately
report the employers' to the state tax department and other state
agencies to secure suspension of any and all licenses,
certificates, permits, registrations and other similar approval
documents necessary for the employer to conduct business in this
state.
§23-2C-20. Claims administration issues.
(a) A self-insured employer shall continue to comply with
rules promulgated by the board of managers governing the self-
administration of its claims and the successor to the commission
shall also comply with the rules promulgated by the board of
managers governing the self-administration of claims.
(b) The successor to the commission, any other private
carrier and any employer that self-insures its risk and self-
administers its claims shall exercise all authority and
responsibility granted to the commission in this chapter and
provide notices of action taken to effect the purposes of this chapter to provide benefits to persons who have suffered injuries
or diseases covered by this chapter. The successor to the
commission, private carriers and self-insured employers shall at
all times be bound and shall comply fully with all of the
provisions of this chapter. Furthermore, all of the provisions
contained in article four of this chapter pertaining to disability
and death benefits are binding on and shall be strictly adhered
to by the successor to the commission, private carriers, and the
self-insured employer in their administration of claims presented
by employees of the self-insured employer.
(c) Upon termination of the commission, the occupational
pneumoconiosis board shall be transferred to the insurance
commissioner and shall be administered by the insurance
commissioner. The company and other private carriers shall have
all authority and responsibility granted to the self-insured
employers in the administration and processing of occupational
pneumoconiosis claims.
(d) Upon termination of the commission, all claims allocation
responsibilities shall transfer from the commission to the
insurance commissioner.
(e) Upon termination of the commission, the administrator of
the old fund shall have all administrative and adjudicatory
authority vested in the commission in administering old law
liabilities and otherwise processing and deciding old law claims.
§23-2C-21. Limitation of liability of insurer or third-party
administrator; administrative fines are exclusive remedies.
(a) No cause of action may be brought or maintained by an
employee against a private carrier or a third-party administrator,
or any employee or agent of a private carrier or third-party
administrator, who violates any provision of this chapter or
chapter thirty-three of this code.
(b) Any administrative fines provided in this chapter or
rules promulgated by the workers' compensation commission, the
insurance commissioner are the exclusive remedies for any
violation of this chapter committed by a private carrier or a
third-party administrator, or any agent or employee of a private
carrier or a third party administrator.
(c) Upon a determination by the office of judges' that a
denial of compensability, a denial of an initial award of
temporary total disability or a denial of an authorization for
medical benefits was unreasonable, reasonable attorney's fees and
the costs actually incurred in the process of obtaining a reversal
of the denial shall be awarded to the claimant and paid by the
company, private carrier or self-insured employer which issued the
unreasonable denial. A denial is unreasonable if, after
submission by or on behalf of the claimant, of evidence of the
compensability of the claim, the entitlement to initial temporary
total disability benefits or medical benefits, the company,
private carrier or self-insured employer is unable to demonstrate
that it had evidence or a legal basis supported by legal authority
at the time of the denial which is relevant and probative and supports the denial of the award or authorization. Payment of
attorney's fees and costs awarded under this subsection will be
made to the claimant at the conclusion of litigation, including
all appeals, of the claimant's protest of the denial.
§23-2C-22. Rules.
Except as otherwise provided in this chapter, all rules
applicable to the former workers' compensation commission are
hereby adopted and made effective as to the operation of the
workers' compensation insurance market to the extent that they are
not in conflict with the current law. Authority to enforce the
existing rules and the regulatory functions of the commission as
set forth in chapter twenty-three of the code shall transfer from
the commission to the insurance commissioner effective upon
termination of the commission.
§23-2C-23. Transfer of assets and contracts.
With the establishment of the company, all commission assets,
excluding those necessary to perform the regulatory function of
the insurance commissioner under this chapter are hereby
transferred and assigned to the company.
ARTICLE 2D. WORKERS' COMPENSATION DEBT REDUCTION BONDS.
§23-2D-1. Short title.
This article shall be known and may be cited as the "Workers'
Compensation Debt Reduction Bond Act".
§23-2D-2. Legislative findings; legislative intent.
The Legislature finds and declares that:
(a) The supreme court of appeals has ruled that article X, section four of the constitution does not preclude issuance of
revenue bonds which are to be redeemed from a special fund.
(b) The supreme court of appeals has also ruled that the
Legislature may not designate funds that will be used to liquidate
a bond issue out of a current tax source that flows into the
general revenue fund.
(c) This act imposes several new taxes and provides for those
taxes to be deposited in the workers' compensation debt reduction
fund created in section five of this article, which is a special
account in the treasury and is not part of the state general
revenue fund.
(d) This act also provides for certain special revenue
dollars that are not part of the state general revenue fund to
also be deposited in the workers' compensation debt reduction
fund.
(e) This article provides for the reduction of the old fund
liability of the workers' compensation commission through the
issuance of revenue bonds for the purpose of:
(1) Providing for the safety and soundness of the workers'
compensation system; and
(2) Redeeming the unfunded liability of the workers'
compensation fund in order to realize savings over the remaining
term of the amortization schedules of the unfunded actuarial
accrued liabilities.
(f) The general credit of the state will not be pledged for
repayment of bonds issued under this article and repayment will come from moneys that are not part of the state's general revenue
fund.
§23-2D-3. Definitions.
For purposes of this article:
(a) "Old fund" means the fund created in sections two and
six, article two-c of this chapter.
(b) "Workers' compensation commission" or "commission" means
the West Virginia workers' compensation commission established
under article one, chapter twenty-three of this code, or any
successor to all or any substantial part of its powers and duties;
and
(c) "Workers' compensation debt reduction revenue bond" means
any bond or bonds issued by the economic development authority
pursuant to this article.
§23-2D-4. Workers' compensation debt reduction revenue bonds;
amount; when may issue.
(a) Revenue bonds of the state of West Virginia are hereby
authorized to be issued and sold by the West Virginia economic
development authority created and provided in article fifteen,
chapter thirty-one of this code, solely for the paying down and
elimination of the current unfunded liability of the workers'
compensation fund, as provided by the constitution and the
provisions of this article. The principal of, and the interest and
redemption premium, if any, on, the bonds shall be payable solely
from the special fund provided in section six of this article for
repayment.
(b) The bonds shall bear such date or dates and mature at
such time or times, be in such amounts, be in such denominations,
be in such registered form, carry such registration privileges,
be due and payable at such time or times, not exceeding thirty
years from their respective dates, and place and in such amounts,
and subject to such terms of redemption as the resolution may
provide: Provided, That in no event may the amount of bonds issued
pursuant to this article exceed one billion five hundred million
dollars.
(c) Revenue bonds issued under this article shall state on
their face that the bonds do not constitute a debt of the state
of West Virginia; that payment of the bonds, interest and charges
thereon cannot become an obligation of the state of West Virginia;
and that the bondholders' remedies are limited in all respects to
the "special revenue fund" established in this article for the
liquidation of the bonds.
(d) Net proceeds from sale of these bonds shall be deposited
in the old fund.
§23-2D-5. Special account created; use of moneys in the fund.
(a) There is hereby created in the state treasury a special
interest bearing account known as the "workers' compensation debt
reduction fund". Funds in this account may be invested in the
manner permitted by the provisions of article six, chapter twelve
of this code, with interest income a proper credit to this fund.
(b) Moneys to be deposited in this account include:
(1) The amounts provided in section two, article eleven-a, chapter four of this code;
(2) The net amount of all moneys received by the tax
commissioner from collection of the new taxes imposed by section
four, article thirteen-v, chapter eleven of this code, including
any interest, additions to tax, or penalties collected with
respect to these taxes pursuant to article ten, chapter eleven of
this code;
(3) The net amount of moneys received by the insurance
commissioner from collection of the new premiums tax imposed by
section three, article two-c of this chapter; and
(4) Moneys from racetrack video lottery net terminal income,
as provided in section ten and ten-b, article twenty-two-a,
chapter twenty-nine of this code.
(c) Moneys in this account are to be used and expended to
reduce the workers' compensation debt or to pay debt service on
bonds sold pursuant to this article for the purpose of reducing
or paying the workers' compensation debt, or for any combination
of both of these purposes.
(d) From the moneys deposited in this fund, there shall first
be transferred each month to the debt service fund created in
section six of this article sufficient amounts to provide for the
timely payment of the principal, interest and redemption premium,
if any, on any revenue bonds or refunding bonds issued pursuant
to this article, as determined in the trust agreement or
agreements. Remaining moneys shall be transferred monthly to the
old fund.
§23-2D-5a. Excess regular coal severance taxes.
When in any fiscal year ending after the thirtieth day of
June, two thousand six, the state collects net severance tax on
the privilege of severing, extracting, reducing to possession or
producing coal for sale profit or commercial use imposed by
section three, article thirteen-a, chapter eleven of the code,
that is in excess of the net amount of the tax collected in fiscal
year two thousand six, fifty percent of the difference shall be
deposited in the old fund created in article two-c of this
chapter. For purposes of this subsection, the amount of the
additional severance tax on coal imposed pursuant to section six,
article thirteen-a, chapter eleven of the code, collected each
fiscal year for the benefit of counties and municipalities as
provided in said section six, shall be excluded when determining
the amount of the tax imposed by section three, article thirteen-
a, chapter eleven of the code, that is collected each fiscal year
from the privilege of severing, extracting, reducing to possession
or producing coal for sale, profit or commercial use. The
provisions of this subsection shall not be effective after the
thirtieth day of June, two thousand nine.
§23-2D-6. Creation of debt service fund; disbursements to pay
debt service on workers' compensation debt reduction
revenue bonds.
(a) There is hereby created a special account in the state
treasury, which shall be designated and known as the "West
Virginia Workers' Compensation Debt Reduction Revenue Bond Debt Service Fund", into which shall monthly be deposited amounts from
the workers' compensation debt reduction fund necessary to pay
debt service on the bonds and to provide for any coverage
requirements.
(b) 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, including any and all commercially customary and
reasonable costs and expenses which may be incurred in connection
with the issuance, refunding, redemption or defeasance thereof.
(c) The treasurer shall transfer moneys in this fund as set
forth in the trust agreement for the bonds issued under this
article.
(d) A lien on the proceeds of the West Virginia workers'
compensation debt reduction revenue bond debt service fund up to
a maximum amount equal to the projected annual principal, interest
and coverage ratio requirements may be granted by the economic
development authority in favor of the bonds it issues secured by
this fund.
§23-2D-7. Covenants of state.
The state of West Virginia covenants and agrees with the
holders of the bonds issued pursuant hereto as follows: (1) That
such bonds shall never constitute a direct and general obligation
of the state of West Virginia; (2) that the full faith and credit
of the state is not hereby pledged to secure the payment of the
principal and interest of such bonds; (3) that new annual state taxes that are not and never were part of the state general
revenue fund shall be collected in an amount sufficient to pay as
it may accrue the interest on such bonds and the principal
thereof; and (4) that the moneys transferred to the workers'
compensation debt reduction revenue bond debt service fund as
provided in this article are irrevocably set aside and dedicated
to the payment of the interest on and principal of any bond
becoming due and payable in such year.
§23-2D-8. Workers' compensation debt reduction revenue bonds
lawful investments.
All workers' compensation debt reduction revenue bonds issued
pursuant to this article shall be lawful investments for banking
institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guarantee
associations, trust companies, insurance companies, including
domestic for life and domestic not for life insurance companies.
§23-2D-9. Refunding bonds.
Any workers' compensation debt reduction revenue bonds which
are outstanding may at any time be refunded by the issuance of
refunding bonds in an amount deemed necessary to refund the
principal of the bonds to be refunded, together with any unpaid
interest thereon; to accomplish the purpose of this article; and
to pay any premiums and commissions necessary to be paid in
connection therewith. Any refunding may be effected whether the
workers' compensation debt reduction revenue bonds to be refunded
shall have then matured or shall thereafter mature. Any refunding bonds issued pursuant to this article shall be payable from the
workers' compensation debt reduction revenue bond debt service
fund shall be secured in accordance with the provisions of this
article.
§23-2D-10. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses, incurred in
the issuance of any revenue bonds pursuant to this article shall
be paid out of bond proceeds.
ARTICLE 3. WORKERS' COMPENSATION FUND.
§23-3-1. Compensation fund; catastrophe and catastrophe payment
defined; compensation by employers.
(a) The commission shall establish a workers' compensation
fund from the premiums and other funds paid thereto by employers,
as provided in this section, for the benefit of employees of
employers who have paid the premiums applicable to the employers
and have otherwise complied fully with the provisions of section
five, article two of this chapter, and for the benefit, to the
extent elsewhere in this chapter set out, of employees of
employers who have elected, under section nine, article two of
this chapter, to make payments into the workers' compensation fund
as provided for in this section, and for the benefit of the
dependents of all the employees, and for the payment of the
administration expenses of this chapter. The workers'
compensation fund created pursuant to this article shall terminate
upon termination of the commission and its proceeds shall be
distributed as set forth in article two-c of this chapter.
(b) A portion of all premiums that are paid into the workers'
compensation fund by subscribers not electing to carry their own
risk under section nine, article two of this chapter that is set
aside to create and maintain a reserve of the fund to cover the
catastrophe hazard and all losses not otherwise specifically
provided for in this chapter. The percentage to be set aside is
determined pursuant to the rules adopted to implement section
four, article two of this chapter and shall be in an amount
sufficient to maintain a solvent fund. All interest earned on
investments by the workers' compensation fund, which is
attributable to the reserve, shall be credited to the fund.
Effective upon termination of the commission, all funds in the
catastrophe fund shall be transferred into the old fund, all
claims payable as a consequence of a catastrophe hazard shall be
payable from the old fund and any premiums due under this article
shall be payable to the old fund. Employers shall purchase
catastrophe insurance from the company or another private carrier
and shall also reinsure their catastrophic risk.
(c) A catastrophe is hereby defined as an accident in which
three or more employees are killed or receive injuries which, in
the case of each individual, consist of: Loss of both eyes or the
sight thereof; loss of both hands or the use thereof; loss of both
feet or the use thereof; or loss of one hand and one foot or the
use thereof. The aggregate of all medical and hospital bills and
other costs and all benefits payable on account of a catastrophe
is defined as "catastrophe payment". In case of a catastrophe to the employees of an employer who is an ordinary premium-paying
subscriber to the fund, or to the employees of an employer who,
having elected to carry the employer's own risk under section
nine, article two of this chapter, has previously elected, or may
later elect, to pay into the catastrophe reserve of the fund under
the provisions of said section, the catastrophe payment arising
from the catastrophe shall not be charged against, or paid by, the
employer but shall be paid from the catastrophe reserve of the
fund.
(d) For all awards made on or after the effective date of the
amendments to this section enacted during the year two thousand
three, the following provisions relating to second injury are not
applicable. For awards made before the date specified in this
subsection, if an employee who has a definitely ascertainable
physical impairment, caused by a previous occupational injury,
occupational pneumoconiosis or occupational disease, irrespective
of its compensability, becomes permanently and totally disabled
through the combined effect of the previous injury and a second
injury received in the course of and as a result of his or her
employment, the employer shall be chargeable only for the
compensation payable for the second injury: Provided, That in
addition to the compensation, and after the completion of the
payments therefor, the employee shall be paid the remainder of the
compensation that would be due for permanent total disability out
of the workers' compensation fund. The procedure by which the
claimant's request for a permanent total disability award under this section is ruled upon shall require that the issue of the
claimant's degree of permanent disability first be determined.
Thereafter, by means of a separate order, a decision shall be made
as to whether the award is a second injury award under this
subsection or a permanent total disability award to be charged to
the employer's account or to be paid directly by the employer if
the employer has elected to be self-insured employer under the
provisions of section nine, article two of this chapter.
(e) Employers electing, as provided in this chapter, to
compensate individually and directly their injured employees and
their fatally injured employees' dependents shall do so in the
manner prescribed by the commission and shall make all reports and
execute all blanks, forms and papers as directed by the
commission, and as provided in this chapter.
§23-3-4. Deposits and disbursements considered abandoned
property; disposition of property.
(a) All disbursements from the workers' compensation fund and
the other funds created pursuant to this chapter including the
advance deposits by employers where there has been no activity for
a period of five years, are presumed abandoned and subject to the
custody of the state as unclaimed property under the provisions
of article eight, chapter thirty-six of this code. The funds
shall be kept in a separate account by the state treasurer, apart
from other unclaimed property funds. Ninety days after the state
treasurer has advertised the accounts and paid any claims, he or
she shall remit the balance of those funds held in the account to the credit of the workers' compensation fund or to other affected
funds. Such property shall become the property of, and owned
exclusively by, the workers' compensation fund. Effective upon
termination of the commission, said funds otherwise meeting the
requirements of this section shall be deposited into the old fund
as set forth in article two-c of this chapter.
(b) Notwithstanding any provision of law to the contrary, all
interest and other earnings accruing to the investments and
deposits of the workers' compensation fund and of the other funds
created pursuant to this chapter are credited only to the account
of the workers' compensation fund or to such other affected fund.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1b. Report of injuries by employers.
It is the duty of every employer to report to the commission,
the successor to the commission or another private carrier,
whichever is applicable, every injury sustained by any person in
his or her employ. The report shall be on forms prescribed by the
commission or the insurance commissioner, whichever is applicable,
and shall be made within five days of the employer's receipt of
the employee's notice of injury, required by section one-a of this
article, or within five days after the employer has been notified
by the commission or the insurance commissioner, whichever is
applicable, that a claim for benefits has been filed on account
of such injury, whichever is sooner, and, notwithstanding any
other provision of this chapter to the contrary, the five-day
period may not be extended by the commission the successor to the commission, or another private carrier, whichever is applicable,
but the employer has the right to file a supplemental report at
a later date. The employer's report of injury shall include a
statement as to whether or not, on the basis of the information
available, the employer disputes the compensability of the injury
or objects to the payment of temporary total disability benefits
in connection with the injury. The statements by the employer
shall not prejudice the employer's right thereafter to contest the
compensability of the injury, or to object to any subsequent
finding or award, in accordance with article five of this chapter;
but an employer's failure to make timely report of an injury as
required in this section, or statements in the report to the
effect that the employer does not dispute the compensability of
the injury or object to the payment of temporary total disability
benefits for the injury, shall be considered to be a waiver of the
employer's right to object to any interim payment of temporary
total disability benefits paid by the commission, the successor
to the commission, or another private carrier with respect to any
period from the date of injury to the date of the commission's
receipt of any objection made to the interim payments by the
employer.
§23-4-1c. Payment of temporary total disability benefits
directly to claimant; payment of medical benefits;
payments of benefits during protest; right of
commission, successor to the commission, other
private carriers and self-insured employers to collect payments improperly made.
(a) In any claim for benefits under this chapter, the
workers' compensation commission, the successor to the commission,
other private carriers or self-insured employer, whichever is
applicable, shall determine whether the claimant has sustained a
compensable injury within the meaning of section one of this
article and enter an order giving all parties immediate notice of
the decision.
(1) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may enter an order conditionally approving the claimant's
application if the commission it finds that obtaining additional
medical evidence or evaluations or other evidence related to the
issue of compensability would aid the commission in making a
correct final decision. Benefits shall be paid during the period
of conditional approval; however, if the final decision is one
that rejects the claim, the payments shall be considered an
overpayment. The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may only recover the amount of the overpayment as provided for in
subsection (h) of this section.
(2) In making a determination regarding the compensability of
a newly filed claim or upon a filing for the reopening of a prior
claim pursuant to the provisions of section sixteen of this
article based upon an allegation of recurrence, reinjury,
aggravation or progression of the previous compensable injury or in the case of a filing of a request for any other benefits under
the provisions of this chapter, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall consider the date of the filing of
the claim for benefits for a determination of the following:
(A) Whether the claimant had a scheduled shutdown beginning
within one week of the date of the filing;
(B) Whether the claimant received notice within sixty days of
the filing that his or her employment position was to be
eliminated, including, but not limited to, the claimant's
worksite, a layoff or the elimination of the claimant's employment
position;
(C) Whether the claimant is receiving unemployment
compensation benefits at the time of the filing; or
(D) Whether the claimant has received unemployment
compensation benefits within sixty days of the filing.
In the event of an affirmative finding upon any of these four
factors, the finding shall be given probative weight in the
overall determination of the compensability of the claim or of the
merits of the reopening request.
(3) Any party may object to the order of the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, and obtain an evidentiary
hearing as provided in section one, article five of this chapter:
Provided, That if the successor to the commissioner, other private
carrier or self-insured, whichever is applicable, fails to timely issue a ruling upon any application or motion as provided by law,
or if the claimant files a timely protest to the ruling of a self-
insured employer, private carrier, or other issuing entity,
denying the compensability of the claim, denying initial temporary
total disability benefits or denying medical authorization, the
office of judges shall provide a hearing on the protest on an
expedited basis as determined by rule of the office of judges.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided
in section five of this article, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, may immediately enter an order commencing
the payment of temporary total disability benefits to the claimant
in the amounts provided for in sections six and fourteen of this
article, and the payment of the expenses provided for in
subsection (a), section three of this article, relating to the
injury, without waiting for the expiration of the thirty-day
period during which objections may be filed to the findings as
provided in section one, article five of this chapter. The
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall enter an
order commencing the payment of temporary total disability or
medical benefits within fifteen working days of receipt of either
the employee's or employer's report of injury, whichever is
received sooner, and also upon receipt of either a proper physician's report or any other information necessary for a
determination. The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall give to the parties immediate notice of any order granting
temporary total disability or medical benefits. When an order
granting temporary total disability benefits is made, the
claimant's return-to-work potential shall be assessed. The
commission may schedule medical and vocational evaluation of the
claimant and assign appropriate personnel to expedite the
claimant's return to work as soon as reasonably possible.
(c) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may enter orders granting temporary total disability benefits upon
receipt of medical evidence justifying the payment of the
benefits. The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may not enter an order granting prospective temporary total
disability benefits for a period of more than ninety days:
Provided, That when the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, determines that the claimant remains disabled beyond
the period specified in the prior order granting temporary total
disability benefits, the commission shall enter an order
continuing the payment of temporary total disability benefits for
an additional period not to exceed ninety days and shall give
immediate notice to all parties of the decision.
(d) Upon receipt of the first report of injury in claim, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall request from
the employer or employers any wage information necessary for
determining the rate of benefits to which the employee is
entitled. If an employer does not furnish the commission with this
information within fifteen days from the date the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, received the first report of
injury in the case, the employee shall be paid temporary total
disability benefits for lost time at the rate the commission
obtains from reports made pursuant to subsection (b), section two,
article two of this chapter. If no wages have been reported, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall make the
payments at the rate the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, finds would be justified by the usual rate of pay for
the occupation of the injured employee. The commission shall
adjust the rate of benefits shall be adjusted both retroactively
and prospectively upon receipt of proper wage information. The
commission shall have access to all wage information in the
possession of any state agency.
(e) Subject to the limitations set forth in section sixteen
of this article, upon a finding of the commission, or self-insured
employer successor to the commission, other private carrier or self-insured employer, whichever is applicable, that a claimant
who has sustained a previous compensable injury which has been
closed by order, or by the claimant's return to work, suffers
further temporary total disability or requires further medical or
hospital treatment resulting from the compensable injury, the
commission or the self-insured employer shall immediately commence
the payment of temporary total disability benefits to the claimant
in the amount provided for in sections six and fourteen of this
article shall immediately commence, and the expenses provided for
in subsection (a), section three of this article, relating to the
disability, without waiting for the expiration of the thirty-day
period during which objections may be filed. The commission or
the self-insured employer shall give Immediate notice to the
parties of the decision shall be given.
(f) Where the employer is a subscriber to the workers'
compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the commission shall
mail all workers' compensation checks paying temporary total
disability benefits directly to the claimant and not to the
employer for delivery to the claimant.
(g) Where the employer has elected to carry its own risk
under section nine, article two of this chapter, and upon the
findings aforesaid, the self-insured employer shall immediately
pay the amounts due the claimant for temporary total disability
benefits. A copy of the notice shall be sent to the claimant.
(h) In the event that an employer files a timely objection to any order of the division with respect to compensability, or any
order denying an application for modification with respect to
temporary total disability benefits, or with respect to those
expenses outlined in subsection (a), section three of this
article, the division shall continue to pay to the claimant such
benefits and expenses during the period of such disability. Where
it is subsequently found by the division that the claimant was not
entitled to receive such temporary total disability benefits or
expenses, or any part thereof, so paid, the division shall, when
the employer is a subscriber to the fund, credit said employer's
account with the amount of the overpayment. When the employer has
protested the compensability or applied for modification of a
temporary total disability benefit award or expenses and the final
decision in that case determines that the claimant was not
entitled to the benefits or expenses, the amount of benefits or
expenses is considered overpaid. For all awards made or
nonawarded partial benefits paid the commission, the successor to
the commission, other private carriers, or self-insured employer
may only recover the amount of overpaid benefits or expenses by
withholding, in whole or in part, future disability benefits
payable to the individual in the same or other claims and credit
the amount against the overpayment until it is repaid in full.
(i) In the event that the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, finds that, based upon the employer's
report of injury, the claim is not compensable, the commission, successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall provide a copy of the
employer's report to the claimant in addition to the order denying
the claim.
(j) If a claimant is receiving benefits paid through a wage
replacement plan, salary continuation plan or other benefit plan
provided by the employer to which the employee has not
contributed, and that plan does not provide an offset for
temporary total disability benefits to which the claimant is also
entitled under this chapter as a result of the same injury or
disease, the employer shall notify the commission of the
duplication of the benefits paid to the claimant. Upon receipt
of the notice, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall reduce the temporary total disability benefits provided
under this chapter by an amount sufficient to ensure that the
claimant does not receive monthly benefits in excess of the amount
provided by the employer's plan or the temporary total disability
benefit, whichever is greater: Provided, That this subsection does
not apply to benefits being paid under the terms and conditions
of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
makes an award for permanent partial or permanent total
disability, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable,
or self-insured employer shall start payment of benefits by
mailing or delivering the amount due directly to the employee
within fifteen working days from the date of the award: Provided,
That the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may
withhold payment of the portion of the award that is the subject
of subsection (b) of this section until seventy-seven days have
expired without an objection being filed.
(b) When the commission, successor to the commission, other
private carrier, self-insured employer, the office of judges or
the workers' compensation board of review, whichever is
applicable, enters an order or provides notice granting the
claimant a permanent total disability award and an objection or
petition for appeal is filed by the employer, or the commission
or self-insured employer shall begin the, the successor to the
commission or other private carrier, payment of monthly permanent
total disability benefits shall begin. However, any payment for
a back period of benefits from the onset date of total permanent
disability to the date of the award shall be limited to a period
of twelve months of benefits. If, after all litigation is
completed and the time for the filing of any further objections
or appeals to the award has expired and the award of permanent
total disability benefits is upheld, the claimant shall receive
the remainder of benefits due to him or her based upon the onset
date of permanent total disability that was finally determined.
(c) If the claimant is owed any additional payment of back
permanent total disability benefits, the commission, or self-
insured employer successor to the commission, other private
carrier or self-insured employer, whichever is applicable, shall
not only pay the claimant the sum owed but shall also add thereto
interest at the simple rate of six percent per annum from the date
of the initial award granting the total permanent disability to
the date of the final order upholding the award. In the event
that an intermediate order directed an earlier onset date of
permanent total disability than was found in the initial award,
the interest-earning period for that additional period shall begin
upon the date of the intermediate award. Any interest payable
shall be charged to the account of the employer or shall be paid
by the employer if it has elected to carry its own risk.
(d) If a timely protest to the award is filed, as provided in
section one or nine, article five of this chapter, the commission
or self-insured employer benefits shall continue pay to be paid
to the claimant benefits during the period of the disability
unless it is subsequently found that the claimant was not entitled
to receive the benefits, or any part thereof, in which event the
commission shall, where the employer is a subscriber to the fund,
credit the employer's account with the amount of the overpayment.
If the final decision in any case determines that a claimant was
not lawfully entitled to benefits paid to him or her pursuant to
a prior decision, the amount of benefit paid shall be considered
overpaid. For all awards made or nonawarded partial benefits paid the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable, may only
recover that amount by withholding, in whole or in part, as
determined by the commission or self-insured employer, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, future disability benefits payable to the
individual in the same or other claims and credit the amount
against the overpayment until it is repaid in full.
(e) An award for permanent partial disability shall be made
as expeditiously as possible and in accordance with the time frame
requirements promulgated by the board of managers.
(f) If a claimant is receiving benefits paid through a
retirement plan, wage replacement plan, salary continuation plan
or other benefit plan provided by the employer to which the
employee has not contributed, and that plan does not provide an
offset for permanent total disability benefits to which the
claimant is also entitled under this chapter as a result of the
same injury or disease, the employer shall notify the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, of the duplication of the
benefits paid to the claimant. Upon receipt of the notice, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall reduce the
permanent total disability benefits provided under this chapter
by an amount sufficient to ensure that the claimant does not
receive monthly benefits in excess of the amount provided by the employer's plan or the permanent total disability benefit,
whichever is greater: Provided, That this subsection does not
apply to benefits being paid under the terms and conditions of a
collective bargaining agreement.
§23-4-1e. Temporary total disability benefits not to be paid for
periods of correctional center or jail confinement;
denial of workers' compensation benefits for injuries
or disease incurred while confined.
(a) Notwithstanding any provision of this code to the
contrary, no person shall be jurisdictionally entitled to
temporary total disability benefits for that period of time in
excess of three days during which that person is confined in a
state correctional facility or a county or regional jail:
Provided, That confinement shall not affect the claimant's
eligibility for payment of expenses: Provided, however, That this
subsection is applicable only to injuries and diseases incurred
prior to any period of confinement. Upon release from
confinement, the payment of benefits for the remaining period of
temporary total disability shall be made if justified by the
evidence and authorized by order of the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable.
(b) Notwithstanding any provision of this code to the
contrary, no person confined in a state correctional facility or
a county or regional jail who suffers injury or a disease in the
course of and resulting from his or her work during the period of confinement which work is imposed by the administration of the
state correctional facility or the county or regional jail and is
not suffered during the person's usual employment with his or her
usual employer when not confined shall receive benefits under the
provisions of this chapter for the injury or disease.
§23-4-3. Schedule of maximum disbursements for medical,
surgical, dental and hospital treatment; legislative
approval; guidelines; preferred provider agreements;
charges in excess of scheduled amounts not to be made;
required disclosure of financial interest in sale or
rental of medically related mechanical appliances or
devices; promulgation of rules to enforce requirement;
consequences of failure to disclose; contract by
employer with hospital, physician, etc., prohibited;
criminal penalties for violation; payments to certain
providers prohibited; medical cost and care program;
payments; interlocutory orders.
(a) The workers' compensation commission, and effective upon
termination of the commission, the insurance commissioner, shall
establish and alter from time to time, as the commission it
determines appropriate, a schedule of the maximum reasonable
amounts to be paid to health care providers, providers of
rehabilitation services, providers of durable medical and other
goods and providers of other supplies and medically related items
or other persons, firms or corporations for the rendering of
treatment or services to injured employees under this chapter. The commission and effective upon termination of the commission,
the insurance commissioner, also, on the first day of each regular
session and also from time to time, as it may consider
appropriate, shall submit the schedule, with any changes thereto,
to the Legislature.
The commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, shall disburse and pay from the fund for personal
injuries to the employees who are entitled to the benefits under
this chapter as follows:
(1) Sums for health care services, rehabilitation services,
durable medical and other goods and other supplies and medically
related items as may be reasonably required. The commission, and
effective upon termination of the commission, all private carriers
and self-insured employers or their agents, shall determine that
which is reasonably required within the meaning of this section
in accordance with the guidelines developed by the health care
advisory panel pursuant to section three-b of this article:
Provided, That nothing in this section shall prevent the
implementation of guidelines applicable to a particular type of
treatment or service or to a particular type of injury before
guidelines have been developed for other types of treatment or
services or injuries: Provided, however, That any guidelines for
utilization review which are developed in addition to the
guidelines provided for in section three-b of this article may be
used by the commission, and effective upon termination of the commission, all private carriers and self-insured employers or
their agents, until superseded by guidelines developed by the
health care advisory panel pursuant to said section. Each health
care provider who seeks to provide services or treatment which are
not within any guideline shall submit to the commission, and
effective upon termination of the commission, all private
carriers, self-insured employers and other payors, specific
justification for the need for the additional services in the
particular case and the commission shall have the justification
reviewed by a health care professional before authorizing the
additional services. The commission, and effective upon
termination of the commission, all private carriers, self-insured
employers and other payors, may enter into preferred provider and
managed care agreements which provides for fees and other payments
which deviate from the schedule set forth in this subsection.
(2) Payment for health care services, rehabilitation
services, durable medical and other goods and other supplies and
medically related items authorized under this subsection may be
made to the injured employee or to the person, firm or corporation
who or which has rendered the treatment or furnished health care
services, rehabilitation services, durable medical or other goods
or other supplies and items, or who has advanced payment for them,
as the commission, and effective upon termination of the
commission, all private carriers, self-insured employers and other
payors, considers proper, but no payments or disbursements shall
be made or awarded by the commission unless duly verified statements on forms prescribed by the commission, and effective
upon termination of the commission, all private carriers, self-
insured employers and other payors, have been filed with the
commission within six months after the rendering of the treatment
or the delivery of such goods, supplies or items or within ninety
days of a subsequent compensability ruling if a claim is initially
rejected: Provided, That no payment under this section shall be
made unless a verified statement shows no charge for or with
respect to the treatment or for or with respect to any of the
items specified in this subdivision has been or will be made
against the injured employee or any other person, firm or
corporation. When an employee covered under the provisions of
this chapter is injured, in the course of and as a result of his
or her employment and is accepted for health care services,
rehabilitation services, or the provision of durable medical or
other goods or other supplies or medically related items, the
person, firm or corporation rendering the treatment may not make
any charge or charges for the treatment or with respect to the
treatment against the injured employee or any other person, firm
or corporation which would result in a total charge for the
treatment rendered in excess of the maximum amount set forth
therefor in the commission schedule set forth in this subsection.
(3) Any pharmacist filling a prescription for medication for
a workers' compensation claimant shall dispense a generic brand
of the prescribed medication if a generic brand exists. If a
generic brand does not exist, the pharmacist may dispense the name brand. In the event that a claimant wishes to receive the name
brand medication in lieu of the generic brand, the claimant may
receive the name brand medication but, in that event, the claimant
is personally liable for the difference in costs between the
generic brand medication and the brand name medication.
(4) In the event that a claimant elects to receive health
care services from a health care provider from outside of the
state of West Virginia and if that health care provider refuses
to abide by and accept as full payment the reimbursement made by
the workers' compensation commission, and effective upon
termination of the commission, all private carriers and self-
insured employers or their agents, pursuant to the schedule of
maximum reasonable amounts of fees authorized by this subsection,
with the exceptions noted below, the claimant is personally liable
for the difference between the scheduled fee and the amount
demanded by the out-of-state health care provider.
(A) In the event of an emergency where there is an urgent
need for immediate medical attention in order to prevent the death
of a claimant or to prevent serious and permanent harm to the
claimant, if the claimant receives the emergency care from an out-
of-state health care provider who refuses to accept as full
payment the scheduled amount, the claimant is not personally
liable for the difference between the amount scheduled and the
amount demanded by the health care provider. Upon the claimant's
attaining a stable medical condition and being able to be
transferred to either a West Virginia health care provider or an out-of-state health care provider who has agreed to accept the
scheduled amount of fees as payment in full, if the claimant
refuses to seek the specified alternative health care providers,
he or she is personally liable for the difference in costs between
the scheduled amount and the amount demanded by the health care
provider for services provided after attaining stability and being
able to be transferred.
(B) In the event that there is no health care provider
reasonably near to the claimant's home who is qualified to provide
the claimant's needed medical services who is either located in
the state of West Virginia or who has agreed to accept as payment
in full the scheduled amounts of fees, the commission, upon
application by the claimant, may authorize the claimant to receive
medical services from another health care provider. The claimant
is not personally liable for the difference in costs between the
scheduled amount and the amount demanded by the health care
provider.
(b) (1) No employer shall enter into any contracts with any
hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or surgical
attention to any employee for injury compensable within the
purview of this chapter and no employer shall permit or require
any employee to contribute, directly or indirectly, to any fund
for the payment of such medical, surgical, dental or hospital
service within such hospital for the compensable injury. Any
employer violating this subsection is liable in damages to the employer's employees as provided in section eight, article two of
this chapter, and any employer or hospital or agent or employee
thereof violating the provisions of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine not less than one hundred dollars nor more than one thousand
dollars or by imprisonment not exceeding one year, or both.
(2) The provisions of this subsection shall not prohibit an
employer, the successor to the commission, other private carrier
or self-insured employer from participating in a managed health
care plan, including, but not limited to, a preferred provider
organization or program or a health maintenance organization or
managed care organization or other medical cost containment
relationship with the providers of medical, hospital or other
health care. An employer, successor to the commission, other
private carrier or self-insured employer that provides a managed
health care plan approved by the commission or, upon termination
of the commission, the insurance commissioner, for its employees
or the employees of its insured may require an injured employee
to use health care providers authorized by the managed health care
plan for care and treatment of his or her compensable injuries.
If the employer does not provide a managed health care plan or
program, the claimant may select his or her initial health care
provider for treatment of a compensable injury or disease, except
as provided under subdivision (3) of this subsection. If a
claimant wishes to change his or her health care provider and if
his or her employer has established and maintains a managed health care plan, the claimant shall select a new health care provider
through the managed health care plan. A claimant who has used the
providers under the employer's managed health care plan may select
a health care provider outside the employer's plan for treatment
of the compensable injury or disease if the employee receives
written approval from the commission to do so and the approval is
given pursuant to criteria established by rule of the commission.
(3) If the commission enters into an agreement which has been
approved by the board of managers with a managed health care plan,
including, but not limited to, a preferred provider organization
or program, a health maintenance organization or managed care
organization or other health care delivery organization or
organizations or other medical cost containment relationship with
the providers of medical, hospital or other health care, then:
(A) If an injured employee's employer does not provide a
managed health care plan approved by the commission for its
employees as described in subdivision (2) of this subsection, the
commission may require the employee to use health care providers
authorized by the commission's managed health care plan for care
and treatment of his or her compensable injuries; and
(B) If a claimant seeks to change his or her initial choice
of health care provider where neither the employer nor the
commission had an approved health care management plan at the time
the initial choice was made, and if the claimant's employer does
not provide access to such a plan as part of the employer's
general health insurance benefit, then the claimant shall be provided with a new health care provider from the commission's
managed health care plan available to him or her.
(C) (c) When an injury has been reported to the commission by
the employer without protest, the commission or self-insured
employer may pay, within the maximum amount provided by schedule
established under this section, bills for health care services
without requiring the injured employee to file an application for
benefits.
(c) (d) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
or self-insured employer shall provide for the replacement of
artificial limbs, crutches, hearing aids, eyeglasses and all other
mechanical appliances provided in accordance with this section
which later wear out, or which later need to be refitted because
of the progression of the injury which caused the devices to be
originally furnished, or which are broken in the course of and as
a result of the employee's employment. The commission, successor
to the commission, other private carrier or self-insured employer
shall pay for these devices, when needed, notwithstanding any time
limits provided by law.
(d) (e) No payment shall be made to a health care provider
who is suspended or terminated under the terms of section three-c
of this article except as provided in subsection (c) of said
section.
(e) (f) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable, may engage in and contract for medical cost containment programs,
pharmacy benefits management programs, medical case management
programs and utilization review programs. Payments for these
programs shall be made from the workers' compensation fund or the
funds of the successor to the commission, other private carrier,
or self-insured employer. Any order issued pursuant to the
program shall be interlocutory in nature until an objecting party
has exhausted all review processes provided for by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable.
(f) (g) Notwithstanding the provisions of this section, the
commission, successor to the commission, other private carrier or
self-insured employer may establish fee schedules, make payments
and take other actions required or allowed pursuant to article
twenty-nine-d, chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
(a) The commission shall establish a health care advisory
panel consisting of representatives of the various branches and
specialties among health care providers in this state which shall
be in existence until termination of the commission. There shall
be a minimum of five members of the health care advisory panel who
shall receive reasonable compensation for their services and
reimbursement for reasonable actual expenses. Each member of this
panel shall be provided appropriate professional or other
liability insurance, without additional premium, by the state
board of risk and insurance management created pursuant to article twelve, chapter twenty-nine of this code. The panel shall:
(1) Establish guidelines for the health care which is
reasonably required for the treatment of the various types of
injuries and occupational diseases within the meaning of section
three of this article;
(2) Establish protocols and procedures for the performance of
examinations or evaluations performed by physicians or medical
examiners pursuant to sections seven-a and eight of this article;
(3) Assist the commission in establishing guidelines for the
evaluation of the care provided by health care providers to
injured employees for purposes of section three-c of this article;
(4) Assist the commission in establishing guidelines
regarding the anticipated period of disability for the various
types of injuries pursuant to subsection (b), section seven-a of
this article; and
(5) Assist the commission in establishing appropriate
professional review of requests by health care providers to exceed
the guidelines for treatment of injuries and occupational diseases
established pursuant to subdivision (1) of this section.
(b) In addition to the requirements of subsection (a) of this
section, on or before the thirty-first day of December, two
thousand three, the board of managers shall promulgate a rule
establishing the process for the medical management of claims and
awards of disability which includes, but is not limited to,
reasonable and standardized guidelines and parameters for
appropriate treatment, expected period of time to reach maximum medical improvement and range of permanent partial disability
awards for common injuries and diseases or, in the alternative,
which incorporates by reference the medical and disability
management guidelines, plan or program being utilized by the
commission for the medical and disability management of claims,
with the requirements, standards, parameters and limitations of
such guidelines, plan or program having the same force and effect
as the rule promulgated in compliance herewith.
§23-4-4. Funeral expenses; wrongfully seeking payment; criminal
penalties.
(a) In case the personal injury causes death, reasonable
funeral or cemetery expense, in an amount to be fixed, from time
to time, by the commission, and upon its termination, the
insurance commissioner, shall be paid from the fund, or the
private carrier, payment to be made to the persons who have
furnished the services and supplies, or to the persons who have
advanced payment for the services and supplies, as the commission
may determine proper, in addition to any award made to the
employee's dependents.
(b) A funeral director or cemeterian, or any person who
furnished the services and supplies associated with the funeral
or cemetery expenses, or a person who has advanced payment for the
services and supplies, is prohibited from making any charge or
charges against the employee's dependents for funeral expenses
which would result in a total charge for funeral expenses in
excess of the amount fixed by the commission, and upon its termination, the insurance commissioner, unless:
(1) The person seeking funeral expenses notifies, in writing
and prior to the rendering of any service, the employee's
dependent as to the exact cost of the service and the exact amount
the employee's dependent would be responsible for paying in excess
of the amount fixed by the commission or insurance commissioner;
and
(2) The person seeking funeral expenses secures, in writing
and prior to the rendering of any service, consent from the
employee's dependent that he or she will be responsible to make
payment for the amount in excess of the amount fixed by the
commission or the insurance commissioner.
(c) Any person who knowingly and willfully seeks or receives
payment of funeral expenses in excess of the amount fixed by the
commission or the insurance commissioner without satisfying both
of the requirements of subsection (b) of this section is guilty
of a misdemeanor and, upon conviction thereof, shall be fined
three thousand dollars or confined in a county or regional jail
for a definite term of confinement of twelve months, or both.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The terms "average weekly wage earnings, wherever earned,
of the injured employee, at the date of injury" and "average
weekly wage in West Virginia", as used in this chapter, have the meaning and shall be computed as set forth in section fourteen of
this article except for the purpose of computing temporary total
disability benefits for part-time employees pursuant to the
provisions of section six-d of this article.
(b) For all awards made on and after the effective date of
the amendment and reenactment of this section during the year two
thousand three, if the injury causes temporary total disability,
the employee shall receive during the continuance of the
disability a maximum weekly benefit to be computed on the basis
of sixty-six and two-thirds percent of the average weekly wage
earnings, wherever earned, of the injured employee, at the date
of injury, not to exceed one hundred percent of the average weekly
wage in West Virginia: Provided, That in no event shall an award
for temporary total disability be subject to annual adjustments
resulting from changes in the average weekly wage in West
Virginia: Provided, however, in the case of a claimant whose award
was granted prior to the effective date of the amendment and
reenactment of this section during the year two thousand three,
the maximum benefit rate shall be the rate applied under the prior
enactment of this subsection which was in effect at the time the
injury occurred. The minimum weekly benefits paid under this
subdivision shall not be less than thirty-three and one-third
percent of the average weekly wage in West Virginia, except as
provided in sections six-d and nine of this article. In no event,
however, shall the minimum weekly benefits exceed the level of
benefits determined by use of the applicable federal minimum hourly wage: Provided further, That any claimant receiving
permanent total disability benefits, permanent partial disability
benefits or dependents' benefits prior to the first day of July,
one thousand nine hundred ninety-four, shall not have his or her
benefits reduced based upon the requirement in this subdivision
that the minimum weekly benefit shall not exceed the applicable
federal minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows:
Aggregate award for a single injury causing temporary disability
shall be for a period not exceeding two hundred eight weeks;
aggregate award for a single injury for which an award of
temporary total disability benefits is made on or after the
effective date of the amendment and reenactment of this section
in the year two thousand three shall be for a period not exceeding
one hundred four weeks. Notwithstanding any other provision of
this subdivision to the contrary, no person may receive temporary
total disability benefits under an award for a single injury for
a period exceeding one hundred four weeks from the effective date
of the amendment and reenactment of this section in the year two
thousand three.
(d) For all awards of permanent total disability benefits
that are made on or after the second day of February, one thousand
nine hundred ninety-five, including those claims in which a
request for an award was pending before the division or which were
in litigation but not yet submitted for a decision, then benefits
shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions
of the Social Security Act, 42 U. S. C. §§401 and 402, in effect
on the effective date of this section. The claimant shall be paid
benefits so as not to exceed a maximum benefit of sixty-six and
two-thirds percent of the claimant's average weekly wage earnings,
wherever earned, at the time of the date of injury not to exceed
one hundred percent of the average weekly wage in West Virginia.
The minimum weekly benefits paid under this section shall be as
is provided for in subdivision (b) of this section. In all claims
in which an award for permanent total disability benefits was made
prior to the second day of February, one thousand nine hundred
ninety-five, the awards shall continue to be paid at the rate in
effect prior to the effective date of the amendment and
reenactment of this section in the year two thousand three:
Provided, That the provisions of sections one through eight,
inclusive, article four-a of this chapter shall be applied
thereafter to all prior awards that were previously subject to its
provisions. A single or aggregate permanent disability of eighty-
five percent or more entitles the employee to a rebuttable
presumption of a permanent total disability for the purpose of
paragraph (2), subdivision (n) of this section: Provided,
however, That the claimant must also be at least fifty percent
medically impaired upon a whole body basis or has sustained a
thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. The presumption
may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n)
of this section. Under no circumstances may the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, grant an additional permanent
disability award to a claimant receiving a permanent total
disability award: Provided further, That if any claimant
thereafter sustains another compensable injury and has permanent
partial disability resulting from the injury, the total permanent
disability award benefit rate shall be computed at the highest
benefit rate justified by any of the compensable injuries.
(e) (1) For all awards made on or after the effective date of
the amendment and reenactment of this section during the year two
thousand three, if the injury causes permanent disability less
than permanent total disability, the percentage of disability to
total disability shall be determined and the award computed on the
basis of four weeks' compensation for each percent of disability
determined at the maximum or minimum benefit rates as follows:
Sixty-six and two-thirds percent of the average weekly wage
earnings, wherever earned, of the injured employee at the date of
injury, not to exceed seventy percent of the average weekly wage
in West Virginia: Provided, That in no event shall an award for
permanent partial disability be subject to annual adjustments
resulting from changes in the average weekly wage in West
Virginia: Provided, however, That in the case of a claimant whose
award was granted prior to the effective date of the amendment and
reenactment of this section during the year two thousand three, the maximum benefit rate shall be the rate applied under the prior
enactment of this section which was in effect at the time the
injury occurred.
(2) If a claimant is released by his or her treating
physician to return to work at the job he or she held before the
occupational injury occurred and if the claimant's preinjury
employer does not offer the preinjury job or a comparable job to
the employee when a position is available to be offered, the award
for the percentage of partial disability shall be computed on the
basis of six weeks of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall
be as provided in subdivision (b) of this section for temporary
total disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent
disability.
The loss of other toes (one phalanx) shall be considered a
two percent disability.
The loss of all toes shall be considered a twenty-five percent disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be
considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index fingers shall be considered a
thirty-two percent disability.
The loss of index and middle fingers shall be considered a
twenty percent disability.
The loss of middle and ring fingers shall be considered a
fifteen percent disability.
The loss of ring and little fingers shall be considered a ten
percent disability.
The loss of thumb, index and middle fingers shall be
considered a forty percent disability.
The loss of index, middle and ring fingers shall be
considered a thirty percent disability.
The loss of middle, ring and little fingers shall be
considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent disability.
The total and irrecoverable loss of the sight of one eye
shall be considered a thirty-three percent disability. For the
partial loss of vision in one or both eyes, the percentages of
disability shall be determined by the commission, using as a basis
the total loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one or both ears, the
percentage of disability shall be determined by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, using as a basis the total loss
of hearing in both ears.
If a claimant sustains a compensable injury which results in
the total loss by severance of any of the bodily members named in
this subdivision or dies from sickness or noncompensable injury
before the commission makes the proper award for the injury, the
commission shall make the award to the claimant's dependents as
defined in this chapter, if any; the payment to be made in the
same installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse
of the claimant after his or her remarriage and that this
liability shall not accrue to the estate of the claimant and is
not subject to any debts of, or charges against, the estate.
(g) If a claimant to whom has been made a permanent partial
award dies from sickness or noncompensable injury, the unpaid
balance of the award shall be paid to claimant's dependents as
defined in this chapter, if any; the payment to be made in the
same installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse
of the claimant after his or her remarriage, and that this
liability shall not accrue to the estate of the claimant and is
not subject to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board has the force and effect of an
award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section and
in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said
section. The occupational pneumoconiosis board created pursuant
to section eight-a of this article shall premise its decisions on
the degree of pulmonary function impairment that claimants suffer
solely upon whole body medical impairment. The workers'
compensation commission shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole
body medical impairment. Once the degree of medical impairment
has been determined, that degree of impairment shall be the degree
of permanent partial disability that shall be awarded to the
claimant. This subdivision is applicable to all injuries incurred
and diseases with a date of last exposure on or after the second
day of February, one thousand nine hundred ninety-five, to all
applications for an award of permanent partial disability made on
and after that date and to all applications for an award of
permanent partial disability that were pending before the
commission or pending in litigation but not yet submitted for
decision on and after that date. The prior provisions of this
subdivision remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the
executive director by the health care advisory panel, the
executive director shall appoint an interdisciplinary examining
board consisting of five members to evaluate claimants, including
by examination if the board elects. The interdisciplinary
examining board shall terminate upon termination of the commission
and all administrative and adjudicatory functions performed by the
interdisciplinary examining board shall be performed by the
following reviewing bodies for those claims over which they have
administrative jurisdiction: (1) The insurance commissioner or
his or her designated administrator of each of the funds set forth
in this chapter; (2) private carriers; or (3) self-insured
employers. The reviewing bodies shall employ or otherwise engage adequate resources, including medical professionals, to perform
the functions of the interdisciplinary examining board. The board
shall be composed of three qualified physicians with specialties
and expertise qualifying them to evaluate medical impairment and
two vocational rehabilitation specialists who are qualified to
evaluate the ability of a claimant to perform gainful employment
with or without retraining. One member of the board shall be
designated annually as chairperson by the executive director. The
term of office of each member of the board shall be six years and
until his or her successor has been appointed and has qualified.
Any member of the board may be appointed to any number of terms.
Any two physician members and one vocational rehabilitation
specialist member shall constitute a quorum for the transaction
of business. The executive director, from time to time, shall fix
the compensation to be paid to each member of the board, and the
members are also entitled to reasonable and necessary traveling
and other expenses incurred while actually engaged in the
performance of their duties. The board shall perform the duties
and responsibilities assigned by the provisions of this chapter,
consistent with the administrative policies developed by the
executive director with the approval of the board of managers.
(1) The executive director shall establish requirements for
the proper completion and support for an application for permanent
total disability benefits within an existing or a new rule no
later than the first day of January, two thousand four. Upon
adoption of the rule by the board of managers, no issue of permanent total disability may be referred to the
interdisciplinary examining board, or, any other reviewing body,
unless a properly completed and supported application for
permanent total disability benefits has been first filed with the
commission. Prior to the referral of any issue to the
interdisciplinary examining board, or, upon its termination, prior
to a reviewing body's adjudication of a permanent total disability
application, the commission, or reviewing body shall conduct
examinations of the claimant that it finds necessary and obtain
all pertinent records concerning the claimant's medical history
and reports of examinations and forward them to the board at the
time of the referral. The commission or reviewing body shall
provide adequate notice to the employer of the filing of the
request for a permanent total disability award and the employer
shall be granted an appropriate period in which to respond to the
request. The claimant and the employer may furnish all pertinent
information to the board or other reviewing body and shall furnish
to the board or other reviewing body any information requested.
by the board. The claimant and the employer may each submit no
more than one report and opinion regarding each issue present in
a given claim. The employer may have the claimant examined by
medical specialists and vocational rehabilitation specialists:
Provided, That the employer is entitled to only one examination
on each issue present in a given claim. Any additional
examinations must be approved by the commission or other reviewing
body and shall be granted only upon a showing of good cause. The reports from all employer-conducted examinations must be filed
with the board or other reviewing body and served upon the
claimant. The board or other reviewing body may request that
those persons who have furnished reports and opinions regarding
a claimant provide it with additional information considered
necessary. by the board. Both the claimant and the employer, as
well as the commission, or other reviewing body may submit or
obtain reports from experts challenging or supporting the other
reports in the record regardless of whether or not the expert
examined the claimant or relied solely upon the evidence of
record.
(2) If the board or a quorum of the board elects to examine
a claimant, the individual members shall conduct any examinations
that are pertinent to each of their specialties. If a claim
presents an issue beyond the expertise of the board, the board may
obtain advice or evaluations by other specialists. In addition,
if the board of managers determines that the number of
applications pending before the interdisciplinary examining board
has exceeded the level at which the board can review and make
recommendations within a reasonable time, the board of managers
may authorize the executive director to appoint any additional
members to the board that are necessary to reduce the backlog of
applications. The additional members shall be recommended by the
health care advisory panel. The executive director may make any
appointments he or she chooses from the recommendations. The
additional board members shall not serve a set term but shall serve until the board of managers determines that the number of
pending applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters
related to the determination of permanent total disability under
the provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions
and managed care decisions arising under section three of this
article.
(4) In the event the board members or other reviewing body
elects to examine a claimant, the board or other reviewing body
shall prepare a report stating the tests, examinations, procedures
and other observations that were made, the manner in which each
was conducted and the results of each. The report shall state the
findings made by the board or other reviewing body and the reasons
for the findings. Copies of the reports of all examinations made
by the board or other reviewing body shall be served upon the
parties and the commission until its termination. Each shall be
given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial
recommendations to the commission in writing with an explanation
for each recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the
commission and each shall be afforded a thirty-day opportunity to
respond in writing to the board or other reviewing body regarding
the board's its recommendations. The board or other reviewing body shall review any responses and issue its final
recommendations. The final recommendations shall be effectuated
by the entry of an appropriate order by the commission, or, upon
its termination, the private carrier or self-insured employer.
For all awards for permanent total disability where the claim was
filed on or after the effective date of the amendment and
reenactment of this section in the year two thousand three, the
commission or other reviewing body shall establish the date of
onset of the claimant's permanent total disability as the date
when a properly completed and supported application for permanent
total disability benefits as prescribed in subdivision (1) of this
subsection that results in a finding of permanent total disability
was filed with the commission or other reviewing body: Provided,
That upon notification of the commission or other reviewing body
by a claimant or his or her representative that the claimant seeks
to be evaluated for permanent total disability, the commission or
other reviewing body shall send the claimant or his or her
representative the proper application form. The commission or
other reviewing body shall set time limits for the return of the
application. A properly completed and supported application
returned within the time limits set by the commission or other
reviewing body shall be treated as if received on the date the
commission or other reviewing body was notified the claimant was
seeking evaluation for permanent total disability: Provided,
however, That notwithstanding any other provision of this section
to the contrary, the onset date may not be sooner than the date upon which the claimant meets the percentage thresholds of prior
permanent partial disability that are established by subsection
(n) of this section as a prerequisite to the claimant's
qualification for consideration for a permanent total disability
award.
(6) Except as noted below, objections pursuant to section
one, article five of this chapter to any order shall be limited
in scope to matters within the record developed before the
workers' compensation commission and the board or other reviewing
body and shall further be limited to the issue of whether the
board or other reviewing body properly applied the standards for
determining medical impairment, if applicable, and the issue of
whether the board's findings are clearly wrong in view of the
reliable, probative and substantial evidence on the whole record.
The preponderance of the evidence set forth in article one of this
chapter shall apply to decisions made by reviewing bodies other
than the commission instead of the clearly wrong standard. If
either party contends that the claimant's condition has changed
significantly since the review conducted by the board or other
reviewing body, the party may file a motion with the
administrative law judge, together with a report supporting that
assertion. Upon the filing of the motion, the administrative law
judge shall cause a copy of the report to be sent to the examining
board or other reviewing body asking the board to review the
report and provide comments if the board chooses within sixty days
of the board's receipt of the report. The board or other reviewing body may either supply comments or, at the board's or
other reviewing body's discretion, request that the claim be
remanded to the board for further review. If remanded, the
claimant is not required to submit to further examination by the
employer's medical specialists or vocational rehabilitation
specialists. Following the remand, the board or other reviewing
body shall file its recommendations with the administrative law
judge for his or her review. If the board or other reviewing body
elects to respond with comments, the comments shall be filed with
the administrative law judge for his or her review. Following the
receipt of either the board's or other reviewing body's
recommendations or comments, the administrative law judge shall
issue a written decision ruling upon the asserted change in the
claimant's condition. No additional evidence may be introduced
during the review of the objection before the office of judges or
elsewhere on appeal: Provided, That each party and the commission
may submit one written opinion on each issue pertinent to a given
claim based upon a review of the evidence of record either
challenging or defending the board's or other reviewing body's
findings and conclusions. Thereafter, based upon the evidence of
record, the administrative law judge shall issue a written
decision containing his or her findings of fact and conclusions
of law regarding each issue involved in the objection. The
limitation of the scope of review otherwise provided in this
subsection is not applicable upon termination of the commission
and any objections shall be subject to article five of this chapter in its entirety.
(k) Compensation payable under any subdivision of this
section shall not exceed the maximum nor be less than the weekly
benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this
chapter, temporary total disability benefits payable under
subdivision (b) of this section shall not be deductible from
permanent partial disability awards payable under subdivision (e)
or (f) of this section. Compensation, either temporary total or
permanent partial, under this section shall be payable only to the
injured employee and the right to the compensation shall not vest
in his or her estate, except that any unpaid compensation which
would have been paid or payable to the employee up to the time of
his or her death, if he or she had lived, shall be paid to the
dependents of the injured employee if there are any dependents at
the time of death.
(m) The following permanent disabilities shall be
conclusively presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in
subdivision (m) of this section, in order to be eligible to apply
for an award of permanent total disability benefits for all
injuries incurred and all diseases, including occupational pneumoconiosis, regardless of the date of last exposure, on and
after the effective date of the amendment and reenactment of this
section during the year two thousand three, a claimant: (A) Must
have been awarded the sum of fifty percent in prior permanent
partial disability awards; (B) must have suffered a single
occupational injury or disease which results in a finding by the
commission that the claimant has suffered a medical impairment of
fifty percent; or (C) has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f)
of this section. Upon filing an application, the claim will be
reevaluated by the examining board or other reviewing body
pursuant to subdivision (i) of this section to determine if the
claimant has suffered a whole body medical impairment of fifty
percent or more resulting from either a single occupational injury
or occupational disease or a combination of occupational injuries
and occupational diseases or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f)
of this section. A claimant whose prior permanent partial
disability awards total eighty-five percent or more shall also be
examined by the board or other reviewing body and must be found
to have suffered a whole body medical impairment of fifty percent
in order for his or her request to be eligible for further review.
The examining board or other reviewing body shall review the claim
as provided for in subdivision (j) of this section. If the
claimant has not suffered whole body medical impairment of at
least fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f)
of this section, the request shall be denied. Upon a finding that
the claimant has a fifty percent whole body medical impairment or
has sustained a thirty-five percent statutory disability pursuant
to the provisions of subdivision (f) of this section, the review
of the application continues as provided for in the following
paragraph of this subdivision. Those claimants whose prior
permanent partial disability awards total eighty-five percent or
more and who have been found to have a whole body medical
impairment of at least fifty percent or have sustained a thirty-
five percent statutory disability pursuant to the provisions of
subdivision (f) of this section are entitled to the rebuttable
presumption created pursuant to subdivision (d) of this section
for the remaining issues in the request.
(2) For all awards made on or after the effective date of the
amendment and reenactment of this section during the year two
thousand three, disability which renders the injured employee
unable to engage in substantial gainful activity requiring skills
or abilities which can be acquired or which are comparable to
those of any gainful activity in which he or she has previously
engaged with some regularity and over a substantial period of time
shall be considered in determining the issue of total disability.
The comparability of preinjury income to post-disability income
will not be a factor in determining permanent total disability.
Geographic availability of gainful employment within a driving
distance of seventy-five miles from the residence of the employee or within the distance from the residence of the employee to his
or her preinjury employment, whichever is greater, will be a
factor in determining permanent total disability. For any
permanent total disability award made after the amendment and
reenactment of this section in the year two thousand three,
permanent total disability benefits shall cease at age seventy
years. In addition, the vocational standards adopted pursuant to
subsection (m), section seven, article three of this chapter shall
be considered once they are effective.
(3) In the event that a claimant, who has been found to have
at least a fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section, is denied an
award of permanent total disability benefits pursuant to this
subdivision and accepts and continues to work at a lesser paying
job than he or she previously held, the claimant is eligible,
notwithstanding the provisions of section nine of this article,
to receive temporary partial rehabilitation benefits for a period
of four years. The benefits shall be paid at the level necessary
to ensure the claimant's receipt of the following percentages of
the average weekly wage earnings of the claimant at the time of
injury calculated as provided in this section and sections six-d
and fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year: Provided, That in no
event shall the benefits exceed one hundred percent of the average
weekly wage in West Virginia. In no event shall the benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection,
subsection (d) of this section or any other provision of this code
to the contrary, on any claim filed on or after the effective date
of the amendment and reenactment of this section in the year two
thousand three:
(A) No percent of whole body medical impairment existing as
the result of carpal tunnel syndrome for which a claim has been
made under this chapter may be included in the aggregation of
permanent disability under the provisions of this subsection or
subsection (d) of this section; and
(B) No percent of whole body medical impairment existing as
the result of any occupational disease, the diagnosis of which is
based solely upon symptoms rather than specific, objective and
measurable medical findings, and for which a claim has been made
under this chapter may be included in the aggregation of permanent
disability under the provisions of this subsection or subsection
(d) of this section.
(o) To confirm the ongoing permanent total disability status
of the claimant, the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, may elect to have any recipient of a permanent total disability award undergo one independent medical examination
during each of the first five years that the permanent total
disability award is paid and one independent medical examination
during each three-year period thereafter until the claimant
reaches the age of seventy years: Provided, That the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, may elect to have any recipient
of a permanent total disability award under the age of fifty years
undergo one independent medical examination during each year that
the permanent total disability award is paid until the recipient
reaches the age of fifty years, and thereafter one independent
medical examination during each three-year period thereafter until
the claimant reaches the age of seventy years.
§23-4-6a. Benefits and mode of payment to employees and
dependents for occupational pneumoconiosis;
further adjustment of claim for occupational
pneumoconiosis.
If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this
article, the percentage of permanent disability is determined by
the degree of medical impairment that is found by the occupational
pneumoconiosis board. The commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall enter an order setting forth the
findings of the occupational pneumoconiosis board with regard to
whether the claimant has occupational pneumoconiosis and the degree of medical impairment, if any, resulting therefrom. That
order is the final decision of the commission for purposes of
section one, article five of this chapter. If a decision is
objected to, the office of judges shall affirm the decision of the
occupational pneumoconiosis board made following hearing unless
the decision is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record. Compensation is
paid therefor in the same manner and at the same rate as is
provided for permanent disability under the provisions of
subdivisions (d), (e), (g), (h), (i), (j), (k), (m) and (n),
section six of this article: Provided, That for any employee who
applies for occupational pneumoconiosis benefits whose award was
granted on or after the effective date of the amendment and
reenactment of this section during the year two thousand three,
there shall be no permanent partial disability awarded based
solely upon a diagnosis of occupational pneumoconiosis, it being
the intent of the Legislature to eliminate any permanent partial
disability awards for occupational pneumoconiosis without a
specific finding of measurable impairment.
If the employee dies from occupational pneumoconiosis, the
benefits shall be as provided for in section ten of this article;
as to the benefits sections eleven to fourteen, inclusive, of this
article apply.
In cases of permanent disability or death due to occupational
pneumoconiosis, as defined in section one of this article,
accompanied by active tuberculosis of the lungs, compensation shall be payable as for disability or death due to occupational
pneumoconiosis alone.
The provisions of section sixteen of this article four of
this chapter and sections two, three, four and five, article five
of this chapter providing for the further adjustment of claims are
applicable to the claim of any claimant who receives a permanent
partial disability award for occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
(a) In all claims for occupational hearing loss caused by
either a single incident of trauma or by exposure to hazardous
noise in the course of and resulting from employment, the degree
of permanent partial disability, if any, shall be determined in
accordance with the provisions of this section and awards made in
accordance with the provisions of section six of this article.
(b) The percent of permanent partial disability for a
monaural hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz shall be determined for the injured ear and
the total shall be divided by four to ascertain the average
decibel loss;
(2) The percent of monaural hearing impairment for the
injured ear shall be calculated by multiplying by one and six-
tenths percent the difference by which the aforementioned average
decibel loss exceeds twenty-seven and one-half decibels, up to a
maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels; and
(3) The percent of monaural hearing impairment obtained shall
be multiplied by twenty-two and one-half to ascertain the degree
of permanent partial disability.
(c) The percent of permanent partial disability for a
binaural hearing loss shall be computed in the following manner:
(1) The measured decibel loss of hearing due to injury at the
sound frequencies of five hundred, one thousand, two thousand and
three thousand hertz is determined for each ear and the total for
each ear shall be divided by four to ascertain the average decibel
loss for each ear;
(2) The percent of hearing impairment for each ear is
calculated by multiplying by one and six-tenths percent the
difference by which the aforementioned average decibel loss
exceeds twenty-seven and one-half decibels, up to a maximum of one
hundred percent hearing impairment, which maximum is reached at
ninety decibels;
(3) The percent of binaural hearing impairment shall be
calculated by multiplying the smaller percentage (better ear) by
five, adding this figure to the larger percentage (poorer ear) and
dividing the sum by six; and
(4) The percent of binaural hearing impairment obtained shall
be multiplied by fifty-five to ascertain the degree of permanent
partial disability.
(d) No permanent partial disability benefits shall be granted
for tinnitus, psychogenic hearing loss, recruitment or hearing loss above three thousand hertz.
(e) An additional amount of permanent partial disability
shall be granted for impairment of speech discrimination, if any,
to determine the additional amount for binaural impairment, the
percentage of speech discrimination in each ear shall be added
together and the result divided by two to calculate the average
percentage of speech discrimination, and the permanent partial
disability shall be ascertained by reference to the percentage of
permanent partial disability in the table below on the line with
the percentage of speech discrimination obtained. To determine
the additional amount for monaural impairment, the permanent
partial disability shall be ascertained by reference to the
percentage of permanent partial disability in the table below on
the line with the percentage of speech discrimination in the
injured ear.
TABLE
% Of Speech Discrimination% of Permanent Partial Disability
90%and up to and including100%0%
80%and up to but not including 90%1%
70%and up to but not including 80%3%
60%and up to but not including 70%4%
0%and up to but not including 60%5%
(f) No temporary total disability benefits shall be granted
for noise-induced hearing loss.
(g) An application for benefits alleging a noise-induced
hearing loss shall set forth the name of the employer or employers and the time worked for each. The commission shall allocate to
and divide any charges resulting from the claim among the
employers with whom the claimant sustained exposure to hazardous
noise for as much as sixty days during the period of three years
immediately preceding the date of last exposure. The allocation
is based upon the time of exposure with each employer. In
determining the allocation, the commission shall consider all the
time of employment by each employer during which the claimant was
exposed and not just the time within the three-year period under
the same allocation as is applied in occupational pneumoconiosis
cases.
(h) The commission shall provide, consistent with current
practice, for prompt referral the claims for evaluation, for all
medical reimbursement and for prompt authorization of hearing
enhancement devices.
(i) The provisions of this section and the amendments to
section six of this article insofar as applicable to permanent
partial disabilities for hearing loss are operative as to any
claim filed after thirty days from the effective date of this
section.
(j) Effective upon termination of the commission, the
administrative duties governing hearing loss claims shall transfer
to the insurance commissioner.
§23-4-7. Release of medical information to employer; legislative
findings; effect of application for benefits; duty of
employer.
(a) The Legislature hereby finds and declares that two of the
primary objectives of the workers' compensation system established
by this chapter are to provide benefits to an injured claimant
promptly and to effectuate his or her return to work at the
earliest possible time; that the prompt dissemination of medical
information to the commission and employer as to diagnosis,
treatment and recovery is essential if these two objectives are
to be achieved; that claimants are increasingly burdened with the
task of contacting their treating physicians to request the
furnishing of detailed medical information to the commission and
their employers; that the commission is increasingly burdened with
the administrative responsibility of providing copies of medical
reports to the employer involved, whereas in other states the
employer can obtain the necessary medical information direct from
the treating physician; that much litigation is occasioned in this
state because of a lack of medical information having been
received by the employer as to the continuing disability of a
claimant; and that detailed narrative reports from the treating
physician are often necessary in order for the commission, the
claimant's representatives and the employer to evaluate a claim
and determine whether additional or different treatment is
indicated.
(b) In view of the foregoing findings, a claimant irrevocably
agrees by the filing of his or her application for benefits that
any physician may release to and orally discuss with the
claimant's employer, or its representative, or with a representative of the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, from time to time, the claimant's medical history and
any medical reports pertaining to the occupational injury or
disease and to any prior injury or disease of the portion of the
claimant's body to which a medical impairment is alleged
containing detailed information as to the claimant's condition,
treatment, prognosis and anticipated period of disability and
dates as to when the claimant will reach or has reached his or her
maximum degree of improvement or will be or was released to return
to work. For the exclusive purposes of this chapter, the patient-
physician privilege of confidentiality is waived with regard to
the physician's providing this medical information to the
commission, the employer or to the employer's representative.
Whenever a copy of any medical report is obtained by the employer
or its representative and the physician has not also forwarded a
copy of the medical report to the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, the employer shall forward a copy of the
medical report to the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, within ten days from the date the employer received
the medical report from the physician.
§23-4-7a. Monitoring of injury claims; legislative findings;
review of medical evidence; recommendation of
authorized treating physician; independent medical evaluations; temporary total disability benefits
and the termination thereof; mandatory action;
additional authority; suspension of benefits.
(a) The Legislature hereby finds and declares that injured
claimants should receive the type of treatment needed as promptly
as possible; that overpayments of benefits with the resultant
hardship created by the requirement of repayment should be
minimized; and that to achieve these two objectives it is
essential that the commission establish and operate a systematic
program for the monitoring of injury claims where the disability
continues longer than might ordinarily be expected.
(b) In view of the foregoing findings, the commission, in
consultation with the health care advisory panel, shall establish
guidelines as to the anticipated period of disability for the
various types of injuries. Each injury claim in which temporary
total disability continues beyond the anticipated period of
disability established for the injury involved shall be reviewed
by the commission. If satisfied, after reviewing the medical
evidence, that the claimant would not benefit by an independent
medical evaluation, the commission shall mark the claim file
accordingly and shall diary the claim file as to the next date for
required review which shall not exceed sixty days. If the
commission concludes that the claimant might benefit by an
independent medical evaluation, the commission shall proceed as
specified in subsections (d) and (e) of this section.
(c) When the authorized treating physician concludes that the claimant has either reached his or her maximum degree of
improvement or is ready for disability evaluation, or when the
claimant has returned to work, the authorized treating physician
may recommend a permanent partial disability award for residual
impairment relating to and resulting from the compensable injury,
and the following provisions govern and control:
(1) If the authorized treating physician recommends a
permanent partial disability award of fifteen percent or less, the
commission shall enter an award of permanent partial disability
benefits based upon the recommendation and all other available
information. The claimant's entitlement to temporary total
disability benefits ceases upon the entry of the award unless
previously terminated under the provisions of subsection (e) of
this section.
(2) If, however, the authorized treating physician recommends
a permanent partial disability award in excess of fifteen percent,
or recommends a permanent total disability award, the claimant's
entitlement to temporary total disability benefits ceases upon the
receipt by the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
of the medical report. The commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant to a physician
or physicians of the commission's its selection for independent
evaluation prior to the entry of a permanent disability award:
Provided, That unless the claimant has returned to work, the claimant shall thereupon receive benefits which shall be at the
permanent partial disability rate as provided in subdivision (e),
section six of this article until the entry of a permanent
disability award or until the claimant returns to work. The amount
of benefits paid prior to the receipt of the independent
evaluation report shall be considered and determined to be payment
of the permanent disability award granted, if any. In the event
that benefits actually paid exceed the amount granted by the
permanent partial disability award, the claimant is entitled to
no further benefits by the award and the excess paid shall be an
overpayment. For all awards made or nonawarded partial benefits
paid the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may
only recover the amount of overpaid benefits or expenses by
withholding, in whole or in part, future disability benefits
payable to the individual in the same or other claims and credit
the amount against the overpayment until it is repaid in full.
(d) When the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
concludes that an independent medical evaluation is indicated, or
that a claimant may be ready for disability evaluation in
accordance with other provisions of this chapter, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall refer the claimant to a
physician or physicians of the commission's its selection for
examination and evaluation. If the physician or physicians selected recommend continued, additional or different treatment,
the recommendation shall be relayed to the claimant and the
claimant's treating physician and the recommended treatment may
be authorized by the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable.
(e) Notwithstanding any provision in subsection (c) of this
section, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall enter a notice suspending the payment of temporary total
disability benefits but providing a reasonable period of time
during which the claimant may submit evidence justifying the
continued payment of temporary total disability benefits when:
(1) The physician or physicians selected by the commission
conclude that the claimant has reached his or her maximum degree
of improvement;
(2) When the authorized treating physician advises the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, that the claimant
has reached his or her maximum degree of improvement or that he
or she is ready for disability evaluation and when the authorized
treating physician has not made any recommendation with respect
to a permanent disability award as provided in subsection (c) of
this section;
(3) When other evidence submitted to the commission,
successor to the commission, other private carrier or self-insured employer, whichever is applicable, justifies a finding that the
claimant has reached his or her maximum degree of improvement; or
(4) When other evidence submitted or otherwise obtained
justifies a finding that the claimant has engaged or is engaging
in abuse, including, but not limited to, physical activities
inconsistent with his or her compensable workers' compensation
injury.
In all cases, a finding by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, that the claimant has reached his or her
maximum degree of improvement terminates the claimant's
entitlement to temporary total disability benefits regardless of
whether the claimant has been released to return to work. Under
no circumstances shall a claimant be entitled to receive temporary
total disability benefits either beyond the date the claimant is
released to return to work or beyond the date he or she actually
returns to work.
In the event that the medical or other evidence indicates
that claimant has a permanent disability, unless he or she has
returned to work, the claimant shall thereupon receive benefits
which shall be at the permanent partial disability rate as
provided in subdivision (e), section six of this article until
entry of a permanent disability award, pursuant to an evaluation
by a physician or physicians selected by the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, or until the claimant returns to work. The amount of benefits shall be considered and determined to be
payment of the permanent disability award granted, if any. In the
event that benefits actually paid exceed the amount granted under
the permanent disability award, the claimant is entitled to no
further benefits by the order.
(f) Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
section, whenever in any claim temporary total disability
continues longer than one hundred twenty days from the date of
injury (or from the date of the last preceding examination and
evaluation pursuant to the provisions of this subsection or
pursuant to the directions of the commission under other
provisions of this chapter), the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant to a physician
or physicians of the commission's selection for examination and
evaluation in accordance with the provisions of subsection (d) of
this section and the provisions of subsection (e) of this section
are fully applicable: Provided, That the requirement of mandatory
examinations and evaluations pursuant to the provisions of this
subsection shall not apply to any claimant who sustained a brain
stem or spinal cord injury with resultant paralysis or an injury
which resulted in an amputation necessitating a prosthetic
appliance.
(g) The provisions of this section are in addition to and in
no way in derogation of the power and authority vested in the commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, by other
provisions of this chapter or vested in the employer to have a
claimant examined by a physician or physicians of the employer's
selection and at the employer's expense, or vested in the claimant
or employer to file a protest, under other provisions of this
chapter.
(h) All evaluations and examinations performed by physicians
shall be performed in accordance with the protocols and procedures
established by the health care advisory panel pursuant to section
three-b of this article: Provided, That the physician may exceed
these protocols when additional evaluation is medically necessary.
(i) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may suspend benefits being paid to a claimant if the claimant
refuses, without good cause, to undergo the examinations or needed
treatments provided for in this section until the claimant submits
to the examination or needed treatments. The executive director
shall propose rules for approval by the commission to implement
the provisions of this subsection.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in
the interest of employees, employers and the commission that
injured employees be encouraged to return to work as quickly as
possible after an injury and that appropriate protections be
afforded to injured employees who return to work on a trial basis.
(b) Notwithstanding any other provisions of this chapter to
the contrary, the injured employee shall not have his or her
eligibility to receive temporary total disability benefits
terminated when he or she returns to work on a trial basis as set
forth in this section. An employee is eligible to return to work
on a trial basis when he or she is released to work on a trial
basis by the treating physician.
(c) When an injured employee returns to work on a trial
basis, the employer shall provide a trial return-to-work
notification to the commission. Upon receipt of the notification,
the commission shall note the date of the first day of work
pursuant to the trial return and shall continue the claimant's
eligibility for temporary total disability benefits, but shall
temporarily suspend the payment of temporary total disability
benefits during the period actually worked by the injured
employee. The claim shall be closed on a temporary total
disability basis either when the injured employee or the
authorized treating physician notifies the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, that the injured employee is able to
perform his or her job or automatically at the end of a period of
three months from the date of the first day of work unless the
employee notifies the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, that he or she is unable to perform the duties of the
job, whichever occurs first. If the injured employee is unable to continue working due to the compensable injury for a three-
month period, the injured employee shall notify the commissioner
provide notice and temporary total disability benefits shall be
reinstated immediately and he or she shall be referred for a
rehabilitation evaluation as provided in section nine of this
article. No provision of this section shall be construed to
prohibit the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
from referring the injured employee for any permanent disability
evaluation required or permitted by any other provision of this
article.
(d) Nothing in this section shall prevent the employee from
returning to work without a trial return-to-work period.
(e) Nothing in this section shall be construed to require an
injured employee to return to work on a trial basis.
(f) The provisions of this section shall be terminated and be
of no further force and effect on the first day of July, two
thousand seven.
§23-4-8. Physical examination of claimant.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
after due notice to the employer and claimant, whenever in the
commission's its opinion it is necessary, order a claimant of
compensation for a personal injury other than occupational
pneumoconiosis to appear for examination before a medical examiner
or examiners selected by the commission, successor to the commission, other private carrier or self-insured employer,
whichever is applicable; and the claimant and employer,
respectively, each have the right to select a physician of the
claimant's or the employer's own choosing and at the claimant's
or the employer's own expense to participate in the examination.
All examinations shall be performed in accordance with the
protocols and procedures established by the health care advisory
panel pursuant to section three-b of this article: Provided, That
the physician may exceed these protocols when additional
evaluation is medically necessary. The claimant and employer
shall, respectively, be furnished with a copy of the report of
examination made by the medical examiner or examiners selected by
the commission, successor to the commission, other private carrier
or self-insured employer, whichever is applicable. The respective
physicians selected by the claimant and employer have the right
to concur in any report made by the medical examiner or examiners
selected by the commission, or each may file with the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, a separate report, which
separate report shall be considered by the commission in passing
upon the claim. If the compensation claimed is for occupational
pneumoconiosis, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may, after due notice to the employer, and whenever in the
commission's opinion it is necessary, order a claimant to appear
for examination before the occupational pneumoconiosis board provided for in section eight-a of this article. In any case the
claimant is entitled to reimbursement for loss of wages, and to
reasonable traveling and other expenses necessarily incurred by
him or her in obeying the order.
Where the claimant is required to undergo a medical
examination or examinations by a physician or physicians selected
by the employer, as aforesaid or in connection with any claim
which is in litigation, the employer shall reimburse the claimant
for loss of wages, and reasonable traveling and other expenses in
connection with the examination or examinations, not to exceed the
expenses paid when a claimant is examined by a physician or
physicians selected by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable.
§23-4-8a. Occupational pneumoconiosis board; composition; term
of office; duties; quorum; remuneration.
The occupational pneumoconiosis board shall consist of five
licensed physicians who shall be appointed by the executive
director. Effective upon termination of the commission, the
physicians shall be appointed by the insurance commissioner:
Provided, That those physicians serving as of the termination of
the commission shall continue to serve until replaced. No person
shall be appointed as a member of the board, or as a consultant
thereto, who has not by special study or experience, or both,
acquired special knowledge of pulmonary diseases. All members of
the occupational pneumoconiosis board shall be physicians of good professional standing admitted to practice medicine and surgery
in this state. Two members shall be roentgenologists. One member
of the board shall be designated annually as chairman by the
executive director. The term of office of each member of the
board shall be six years. The five members of the existing board
in office on the effective date of this section shall continue to
serve until their terms expire and until their successors have
been appointed and have qualified. Any member of the board may
be appointed to any number of terms. The function of the board
is to determine all medical questions relating to cases of
compensation for occupational pneumoconiosis under the direction
and supervision of the executive director and, effective upon
termination of the commission, the insurance commissioner. Any
three members of the board constitute a quorum for the transaction
of its business if at least one of the members present is a
roentgenologist. The executive director and, effective upon
termination of the commission, the insurance commissioner, shall,
from time to time, fix the compensation to be paid each member of
the board. Members are also entitled to reasonable and necessary
traveling and other expenses incurred while actually engaged in
the performance of their duties. In fixing the compensation of
board members, the executive director or the insurance
commissioner shall take into consideration the number of claimants
a member of the board actually examines, the actual time spent by
members in discharging their duties and the recommendation of the
board of managers and governor as to reasonable reimbursement per unit of time expended based on comparative data for physicians
within the state in the same medical specialties.
§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.
The occupational pneumoconiosis board, upon reference to it
by the commission an appropriate party of a case of occupational
pneumoconiosis, shall notify the employee, or in case he or she
is dead, the claimant, and the employer, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, to appear before the board at a time and
place stated in the notice. If the employee is living, he or she
shall appear before the board at the time and place specified and
submit to the examination, including clinical and X-ray
examinations, required by the board. If a physician licensed to
practice medicine in the state makes an affidavit that the
employee is physically unable to appear at the time and place
designated by the board, the board shall, on notice to the proper
parties, change the place and time as may reasonably facilitate
the hearing or examination of the employee or may appoint a
qualified specialist in the field of respiratory disease to
examine the claimant on behalf of the board. The employee, or in
case he or she is dead, the claimant, and employer shall also
produce as evidence to the board all reports of medical and X-ray
examinations which may be in their respective possession or
control, showing the past or present condition of the employee.
If the employee is dead, the notice of the board shall further
require that the claimant produce necessary consents and permits so that an autopsy may be performed, if the board so directs.
When in the opinion of the board an autopsy is considered
necessary accurately and scientifically to ascertain and determine
the cause of death, the autopsy examination shall be ordered by
the board, which shall designate a duly licensed physician, a
pathologist or any other specialists determined necessary by the
board, to make the examination and tests to determine the cause
of death and certify his or her or their written findings, in
triplicate, to the board. The findings shall be public records.
In the event that a claimant for compensation for the death
refuses to consent and permit the autopsy to be made, all rights
for compensation are forfeited.
The employee, or if he or she be dead, the claimant, and the
employer, shall be entitled to be present at all examinations
conducted by the board and to be represented by attorneys and
physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and
distribution thereof; presumption; findings
required of board; objection to findings;
procedure thereon; limitations on refilings;
consolidation of claims.
(a) The occupational pneumoconiosis board, as soon as
practicable, after it has completed its investigation, shall make
its written report, to the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, of its findings and conclusions on every medical question in controversy and the commission shall send one
copy of the report to the employee or claimant and one copy to the
employer. The board shall also return to and file with the
commission all the evidence as well as all statements under oath,
if any, of the persons who appeared before it on behalf of the
employee or claimant, or employer, and also all medical reports
and X-ray examinations produced by or on behalf of the employee
or claimant, or employer.
(b) If it can be shown that the claimant or deceased employee
has been exposed to the hazard of inhaling minute particles of
dust in the course of and resulting from his or her employment for
a period of ten years during the fifteen years immediately
preceding the date of his or her last exposure to such hazard and
that the claimant or deceased employee has sustained a chronic
respiratory disability, it shall be presumed that the claimant is
suffering or the deceased employee was suffering at the time of
his or her death from occupational pneumoconiosis which arose out
of and in the course of his or her employment. This presumption
is not conclusive.
(c) The findings and conclusions of the board shall set
forth, among other things, the following:
(1) Whether or not the claimant or the deceased employee has
contracted occupational pneumoconiosis and, if so, the percentage
of permanent disability resulting therefrom;
(2) Whether or not the exposure in the employment was
sufficient to have caused the claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated an
existing occupational pneumoconiosis or other occupational
disease; and
(3) What, if any, physician appeared before the board on
behalf of the claimant or employer and what, if any, medical
evidence was produced by or on behalf of the claimant or employer.
(d) If either party objects to the whole or any part of the
findings and conclusions of the board, the party shall file with
the commission or, on or after the first day of July, one thousand
nine hundred ninety-one, with the office of judges, within thirty
days from receipt of the copy to that party, unless for good cause
shown the commission or chief administrative law judge extends the
time, the party's objections to the findings and conclusions of
the board in writing, specifying the particular statements of the
board's findings and conclusions to which such party objects. The
filing of an objection within the time specified is a condition
of the right to litigate the findings and therefore
jurisdictional. After the time has expired for the filing of
objections to the findings and conclusions of the board, the
commission or administrative law judge shall proceed to act as
provided in this chapter. If after the time has expired for the
filing of objections to the findings and conclusions of the board
no objections have been filed, the report of a majority of the
board of its findings and conclusions on any medical question
shall be taken to be plenary and conclusive evidence of the
findings and conclusions stated in the report. If objection has been filed to the findings and conclusions of the board, notice
of the objection shall be given to the board, and the members of
the board joining in the findings and conclusions shall appear at
the time fixed by the commission or office of judges for the
hearing to submit to examination and cross-examination in respect
to the findings and conclusions. At the hearing, evidence to
support or controvert the findings and conclusions of the board
shall be limited to examination and cross-examination of the
members of the board and to the taking of testimony of other
qualified physicians and roentgenologists.
(e) In the event that a claimant receives a final decision
that he or she has no evidence of occupational pneumoconiosis, the
claimant is barred for a period of three years from the date of
the occupational pneumoconiosis board's decision or until his or
her employment with the employer who employed the claimant at the
time designated as the claimant's last date of exposure in the
denied claim has terminated, whichever is sooner, from filing a
new claim or pursuing a previously filed, but unruled upon, claim
for occupational pneumoconiosis or requesting a modification of
any prior ruling finding him or her not to be suffering from
occupational pneumoconiosis. For the purposes of this subsection,
a claimant's employment shall be considered to be terminated if,
for any reason, he or she has not worked for that employer for a
period in excess of ninety days. Any previously filed, but
unruled upon, claim shall be consolidated with the claim in which
the board's decision is made and shall be denied together with the decided claim. The provisions of this subsection shall not be
applied in any claim where doing so would, in and of itself, later
cause a claimant's claim to be forever barred by the provisions
of section fifteen of this article.
(f) Effective upon termination of the commission, the
insurance commissioner shall assume all administrative powers and
responsibilities necessary to administer sections eight-a, eight-b
and eight-c of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist employees to return to
suitable gainful employment after an injury. In order to
encourage workers to return to employment and to encourage and
assist employers in providing suitable employment to injured
employees, it is a priority of the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, to achieve early identification of
individuals likely to need rehabilitation services and to assess
the rehabilitation needs of these injured employees. It is the
goal of rehabilitation to return injured employees to employment
which is comparable in work and pay to that which the individual
performed prior to the injury. If a return to comparable work is
not possible, the goal of rehabilitation is to return the
individual to alternative suitable employment, using all possible
alternatives of job modification, restructuring, reassignment and
training, so that the individual will return to productivity with his or her employer or, if necessary, with another employer. The
Legislature further finds that it is the shared responsibility of
the employer, the employee, the physician and the commission to
cooperate in the development of a rehabilitation process designed
to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in
temporary disability as determined by the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall at the earliest possible time
determine whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation
services and if the commission it is determines determined that
the employee can be physically and vocationally rehabilitated and
returned to remunerative employment by the provision of
rehabilitation services including, but not limited to, vocational
or on-the-job training, counseling, assistance in obtaining
appropriate temporary or permanent work site, work duties or work
hours modification, by the provision of crutches, artificial limbs
or other approved mechanical appliances, or medicines, medical,
surgical, dental or hospital treatment or other services which the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, in its sole
discretion determines will directly assist the employee's return to employment, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall immediately develop a rehabilitation plan for the employee
and, after due notice to the employer, expend an amount necessary
for that purpose: Provided, That the expenditure for vocational
rehabilitation shall not exceed twenty thousand dollars for any
one injured employee: Provided, however, That no payment shall
be made for such vocational rehabilitation purposes as provided
in this section unless authorized by the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, prior to the rendering of the physical
or vocational rehabilitation, except that payments shall be made
for reasonable medical expenses without prior authorization if
sufficient evidence exists which would relate the treatment to the
injury and the attending physician or physicians have requested
authorization prior to the rendering of the treatment: Provided
further, That payment for physical rehabilitation, including the
purchase of prosthetic devices and other equipment and training
in use of the devices and equipment, are considered expenses
within the meaning of section three of this article and are
subject to the provisions of sections three, three-b and three-c
of this article. The provision of any rehabilitation services may
be pursuant to a rehabilitation plan to be developed and monitored
by a rehabilitation professional for each injured employee or by
such other provider as determined by the commission, successor to
the commission, other private carrier or self-insured employer, whichever is applicable. Notwithstanding any other provision of
this section to the contrary, the commission may determine under
rules promulgated by the board of managers that a rehabilitation
plan or any component thereof is not appropriate for an injured
employee.
(c) In every case in which the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, orders physical or vocational
rehabilitation of a claimant as provided in this section, the
claimant shall, during the time he or she is receiving any
vocational rehabilitation or rehabilitative treatment that renders
him or her totally disabled during the period of rehabilitation,
be compensated on a temporary total disability basis for that
period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly wage
earnings earned by the injured employee at the time of the injury,
he or she shall receive temporary partial rehabilitation benefits
calculated as follows: The temporary partial rehabilitation
benefit shall be seventy percent of the difference between the
average weekly wage earnings earned at the time of the injury and
the average weekly wage earnings earned at the new employment,
both to be calculated as provided in sections six, six-d and
fourteen of this article as the calculation is performed for
temporary total disability benefits, subject to the following limitations: In no event are the benefits subject to the minimum
benefit amounts required by the provisions of subdivision (b),
section six of this article, nor may the benefits exceed the
temporary total disability benefits to which the injured employee
would be entitled pursuant to sections six, six-d and fourteen of
this article during any period of temporary total disability
resulting from the injury in the claim: Provided, That no
temporary total disability benefits shall be paid for any period
for which temporary partial rehabilitation benefits are paid:
Provided, however, That the aggregate award of temporary total
rehabilitation or temporary partial rehabilitation benefits for
a single injury for which an award of temporary total
rehabilitation or temporary partial rehabilitation benefits is
made on or after the effective date of the amendment and
reenactment of this section in the year two thousand three shall
be for a period not exceeding fifty-two weeks unless the payment
of temporary total rehabilitation disability benefits is in
conjunction with an approved vocational rehabilitation plan for
retraining, in which event the payment period of temporary total
rehabilitation disability benefits may be extended for a period
not to exceed a total of one hundred four weeks. The amount of
temporary partial rehabilitation benefits payable under this
subsection shall be reviewed every ninety days to determine
whether the injured employee's average weekly wage in the new
employment has changed and, if the change has occurred, the amount
of benefits payable under this subsection shall be adjusted prospectively. Temporary partial rehabilitation benefits shall
only be payable when the injured employee is receiving vocational
rehabilitation services in accordance with a rehabilitation plan
developed under this section and no payment of temporary partial
rehabilitation benefits shall be made after the claimant has
received the vocational training provided under the rehabilitation
plan.
(e) The executive director, in consultation with the board of
managers, shall propose for promulgation rules for the purpose of
developing a comprehensive rehabilitation program which will
assist injured workers to return to suitable gainful employment
after an injury in a manner consistent with the provisions and
findings of this section. The rules shall provide definitions for
rehabilitation facilities and rehabilitation services pursuant to
this section. Notwithstanding any other provision of this chapter
to the contrary, and in addition to the provisions of section
three of this article authorizing employers to participate in a
managed health care plan, including a managed health care plan
that provide provides physical and vocational rehabilitation
services, an employer may contract directly with one or more
providers of vocational rehabilitation services to be the
employer's preferred provider of vocational rehabilitation
services for its employees who receive injuries compensable under
the provisions of this chapter and the rules promulgated under
this section may require those employees to use the preferred
providers.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her
employment, causes death, and disability is continuous from the
date of the injury until the date of death, or if death results
from occupational pneumoconiosis or from any other occupational
disease, the benefits shall be in the amounts and to the persons
as follows:
(a) If there are no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article;
(b) If there are dependents as defined in subdivision (d) of
this section, the dependents shall be paid for as long as their
dependency continues in the same amount that was paid or would
have been paid the deceased employee for total disability had he
or she lived. The order of preference of payment and length of
dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage of
the widow or widower, and any child or children dependent upon the
decedent until each child reaches eighteen years of age or where
the child after reaching eighteen years of age continues as a
full-time student in an accredited high school, college,
university, business or trade school, until the child reaches the
age of twenty-five years, or if an invalid child, to continue as
long as the child remains an invalid. All persons are jointly entitled to the amount of benefits payable as a result of
employee's death;
(2) A wholly dependent father or mother until death; and
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee;
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month to continue for
the portion of the period of six years after the death, determined
by the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, but no
partially dependent person shall receive compensation payments as
a result of the death of more than one employee.
Compensation under this subdivision and subdivision (b) of
this section shall, except as may be specifically provided to the
contrary in those subdivisions, cease upon the death of the
dependent, and the right to the compensation shall not vest in his
or her estate.
(d) "Dependent", as used in this chapter, means a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided in this section,
invalid child or posthumous child, who, at the time of the injury
causing death, is dependent, in whole or in part, for his or her
support upon the earnings of the employee, stepchild under
eighteen years of age, or under twenty-five years of age when a
full-time student as provided in this section, child under eighteen years of age legally adopted prior to the injury causing
death, or under twenty-five years of age when a full-time student
as provided in this section, father, mother, grandfather or
grandmother, who, at the time of the injury causing death, is
dependent, in whole or in part, for his or her support upon the
earnings of the employee; and invalid brother or sister wholly
dependent for his or her support upon the earnings of the employee
at the time of the injury causing death; and
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any
dependents as defined in subdivision (d) of this section, an award
shall be made to the dependents in an amount equal to one hundred
four times the weekly benefit the worker was receiving at the time
of his or her death and be paid either as a lump sum or in
periodic payments, at the option of the dependent or dependents.
§23-4-11. To whom death benefits paid.
The benefits, in case of death, shall be paid to one or more
dependents of the decedent, or to any other persons, for the
benefit of all of the dependents, as may be determined by the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, who may apportion
the benefits among the dependents in the manner as they consider
just and equitable. Payment to a dependent subsequent in right
may be made if the commission considers proper and it operates to
discharge all other claims for the benefits.
§23-4-12. Application of benefits.
The dependent or person to whom benefits are paid shall apply
the benefits to the use of the several beneficiaries of the
benefits according to their respective claims upon the decedent
for support, in compliance with the finding and direction of the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of the
injured person at the date of injury and the average weekly wage
in West Virginia as determined by the commission, and, effective
the first day of January, two thousand six, the insurance
commissioner, in effect at the date of injury, shall be taken as
the basis upon which to compute the benefits.
(1) In cases involving occupational pneumoconiosis or other
occupational diseases, the "date of injury" is the date of the
last exposure to the hazards of occupational pneumoconiosis or
other occupational diseases.
(2) In computing benefits payable on account of occupational
pneumoconiosis, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall deduct the amount of all prior workers' compensation
benefits paid to the same claimant on account of silicosis, but
a prior silicosis award shall not, in any event, preclude an award
for occupational pneumoconiosis otherwise payable under this
article.
(b) (1) Until the first day of July, one thousand nine hundred ninety-four, the expression "average weekly wage earnings,
wherever earned, of the injured person, at the date of injury",
within the meaning of this chapter, shall be computed based upon
the daily rate of pay at the time of the injury or upon the
average pay received during the two months, six months or twelve
months immediately preceding the date of the injury, whichever is
most favorable to the injured employee, except for the purpose of
computing temporary total disability benefits for part-time
employees pursuant to the provisions of section six-d of this
article.
(2) On and after the first day of July, one thousand nine
hundred ninety-four, the expression "average weekly wage earnings,
wherever earned, of the injured person, at the date of injury",
within the meaning of this chapter, shall be computed based upon
the daily rate of pay at the time of the injury or upon the weekly
average derived from the best quarter of wages out of the
preceding four quarters of wages as reported to the commission
pursuant to subsection (b), section two, article two of this
chapter, whichever is most favorable to the injured employee,
except for the purpose of computing temporary total disability
benefits for part-time employees pursuant to the provisions of
section six-d of this article.
(c) The expression "average weekly wage in West Virginia",
within the meaning of this chapter, is the average weekly wage in
West Virginia as determined by the commissioner of the bureau of
employment programs in accordance with the provisions of sections ten and eleven, article six, chapter twenty-one-a of this code and
other applicable provisions of said chapter.
(d) In any claim for injuries, including occupational
pneumoconiosis and other occupational diseases, occurring on or
after the first day of July, one thousand nine hundred seventy-
one, any award for temporary total, permanent partial or permanent
total disability benefits or for dependent benefits shall be paid
at the weekly rates or in the monthly amount in the case of
dependent benefits applicable to the claimant in effect on the
date of the injury. In no event shall an award for permanent
total disability be subject to annual adjustments resulting from
changes in the average weekly wage in West Virginia.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased
employee to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease, the
application for compensation shall be made on the form or forms
prescribed by the commission and, effective upon termination of
the commission, the insurance commissioner, and filed with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, within six months
from and after the injury or death, as the case may be, and unless
filed within the six months period, the right to compensation
under this chapter is forever barred, such time limitation being
hereby declared to be a condition of the right and hence
jurisdictional, and all proofs of dependency in fatal cases must also be filed with the commission within six months from and after
the death. In case the employee is mentally or physically
incapable of filing the application, it may be filed by his or her
attorney or by a member of his or her family.
(b) To entitle any employee to compensation for occupational
pneumoconiosis under the provisions of this subsection, the
application for compensation shall be made on the form or forms
prescribed by the commission and effective upon termination of the
commission, the insurance commissioner, and filed with the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, within three years
from and after the last day of the last continuous period of sixty
days or more during which the employee was exposed to the hazards
of occupational pneumoconiosis or within three years from and
after a diagnosed impairment due to occupational pneumoconiosis
was made known to the employee by a physician and unless filed
within the three-year period, the right to compensation under this
chapter is forever barred, such time limitation being hereby
declared to be a condition of the right and hence jurisdictional,
or, in the case of death, the application shall be filed by the
dependent of the employee within one year from and after the
employee's death, and such time limitation is a condition of the
right and hence jurisdictional.
(c) To entitle any employee to compensation for occupational
disease other than occupational pneumoconiosis under the
provisions of this section, the application for compensation shall be made on the form or forms prescribed by the commission and,
effective upon termination of the commission, the insurance
commissioner, and filed with the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, within three years from and after the day
on which the employee was last exposed to the particular
occupational hazard involved or within three years from and after
the employee's occupational disease was made known to him or her
by a physician or which he or she should reasonably have known,
whichever last occurs, and unless filed within the three-year
period, the right to compensation under this chapter shall be
forever barred, such time limitation being hereby declared to be
a condition of the right and therefore jurisdictional, or, in case
of death, the application shall be filed as aforesaid by the
dependent of the employee within one year from and after the
employee's death, and such time limitation is a condition of the
right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
Notwithstanding any other provisions of this chapter,
nonresident alien beneficiaries are entitled to the same benefits
as citizens of the United States: Provided, That the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, in its discretion may make, and
the beneficiary shall accept, commutation of the benefits into a
lump sum settlement and payment. Nonresident alien beneficiaries
within the meaning of this section means persons not citizens of the United States residing outside of the territorial limits of
the United States at the time of the injury with respect to which
benefits are awarded.
§23-4-15b. Determination of nonmedical questions by commission;
claims for occupational pneumoconiosis; hearing.
(a) If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the last
day of the last continuous period of sixty days' exposure to the
hazards of occupational pneumoconiosis, the commission shall
determine whether the claimant was exposed to the hazards of
occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within three
years prior to the filing of his or her claim, whether in the
state of West Virginia the claimant was exposed to such hazard
over a continuous period of not less than two years during the ten
years immediately preceding the date of his or her last exposure
to the hazard and whether the claimant was exposed to the hazard
over a period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure to the
hazard. If a claim for occupational pneumoconiosis benefits is
filed by an employee within three years from and after the
employee's occupational pneumoconiosis was made known to the
employee by a physician, the commission shall determine whether
the claimant filed his or her application within that period and
whether in the state of West Virginia the claimant was exposed to
the hazard over a continuous period of not less than two years during the ten years immediately preceding the date of last
exposure to the hazard and whether the claimant was exposed to the
hazard over a period of not less than ten years during the fifteen
years immediately preceding the date of last exposure to the
hazard. If a claim for occupational pneumoconiosis benefits is
filed by a dependent of a deceased employee, the commission shall
determine whether the deceased employee was exposed to the hazards
of occupational pneumoconiosis for a continuous period of not less
than sixty days while in the employ of the employer within ten
years prior to the filing of the claim, whether in the state of
West Virginia the deceased employee was exposed to the hazard over
a continuous period of not less than two years during the ten
years immediately preceding the date of his or her last exposure
to the hazard and whether the claimant was exposed to the hazard
over a period of not less than ten years during the fifteen years
immediately preceding the date of his or her last exposure to the
hazard. The commission shall also determine other nonmedical
facts that, in the commission's opinion, are pertinent to a
decision on the validity of the claim.
The commission shall enter an order with respect to
nonmedical findings within ninety days following receipt by the
commission of both the claimant's application for occupational
pneumoconiosis benefits and the physician's report filed in
connection with the claimant's application and shall give each
interested party notice in writing of these findings with respect
to all the nonmedical facts. The findings and actions of the commission are final unless the employer, employee, claimant or
dependent, within thirty days after receipt of the notice, objects
to the findings, and unless an objection is filed within the
thirty-day period, the findings are forever final, the time
limitation is a condition of the right to litigate the findings
and therefor jurisdictional. Upon receipt of an objection, the
chief administrative law judge shall set a hearing as provided in
section nine, article five of this chapter. In the event of an
objection to the findings by the employer, the claim shall,
notwithstanding the fact that one or more hearings may be held
with respect to the objection, mature for reference to the
occupational pneumoconiosis board with like effect as if the
objection had not been filed. If the administrative law judge
concludes after the protest hearings that the claim should be
dismissed, a final order of dismissal shall be entered. The final
order is subject to appeal in accordance with the provisions of
sections ten and twelve, article five of this chapter. If the
administrative law judge concludes after the protest hearings that
the claim should be referred to the occupational pneumoconiosis
board for its review, the order entered shall be interlocutory
only and may be appealed only in conjunction with an appeal from
a final order with respect to the findings of the occupational
pneumoconiosis board.
(b) The administrative duties required to be performed by the
commission pursuant to section fifteen-b of this article, and all
applicable exempt legislative rules shall transfer from the commission to the insurance commissioner effective upon
termination of the commission.
§23-4-16. Jurisdiction over case continuous; modification of
finding or order; time limitation on awards;
reimbursement of claimant for expenses; reopening
cases involving permanent total disability;
promulgation of rules.
(a) The power and jurisdiction of the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, over each case is continuing and the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may, in accordance
with the provisions of this section and after due notice to the
employer, make modifications or changes with respect to former
findings or orders that are justified. Upon and after the second
day of February, one thousand nine hundred ninety-five, the period
in which a claimant may request a modification, change or
reopening of a prior award that was entered either prior to or
after that date shall be determined by the following subdivisions
of this subsection. Any request that is made beyond that period
shall be refused.
(1) Except as provided in section twenty-two of this article,
in any claim which was closed without the entry of an order
regarding the degree, if any, of permanent disability that a
claimant has suffered, or in any case in which no award has been
made, any request must be made within five years of the closure. During that time period, only two requests may be filed.
(2) Except as stated below, in any claim in which an award of
permanent disability was made, any request must be made within
five years of the date of the initial award. During that time
period, only two requests may be filed. With regard to those
occupational diseases, including occupational pneumoconiosis,
which are medically recognized as progressive in nature, if any
such request is granted by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, a new five-year period begins upon the
date of the subsequent award. With the advice of the health care
advisory panel, the executive director and the board of managers
shall by rule designate those progressive diseases which are
customarily the subject of claims.
(3) No further award may be made in fatal cases except within
two years after the death of the employee.
(4) With the exception of the items set forth in subsection
(d), section three of this article, in any claim in which medical
or any type of rehabilitation service has not been rendered or
durable medical goods or other supplies have not been received for
a period of five years, no request for additional medical or any
type of rehabilitation benefits shall be granted nor shall any
medical or any type of rehabilitation benefits or any type of
goods or supplies be paid for by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, if they were provided without a prior request. For the exclusive purposes of this subdivision, medical
services and rehabilitation services shall not include any
encounter in which significant treatment was not performed.
(b) In any claim in which an injured employee makes
application for a further period of temporary total disability,
if the application is in writing and filed within the applicable
time limit stated above, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall pass upon the request within thirty
days of the receipt of the request. If the decision is to grant
the request, the order shall provide for the receipt of temporary
total disability benefits. In any case in which an injured
employee makes application for a further award of permanent
partial disability benefits or for an award of permanent total
disability benefits, if the application is in writing and filed
within the applicable time limit as stated above, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall pass upon the request
within thirty days of its receipt and, if the commission
determines that the claimant may be entitled to an award, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall refer the
claimant for further examinations that are necessary.
(c) If the application is based on a report of any medical
examination made of the claimant and submitted by the claimant to
the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, in support of
his or her application and the claim is opened for further
consideration and additional award is later made, the claimant
shall be reimbursed for the expenses of the examination. The
reimbursement shall be made by the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, to the claimant, in addition to all other
benefits awarded, upon due proof of the amount thereof being
furnished the commission's by the claimant, but shall in no case
exceed the sum fixed pursuant to the applicable schedule of
maximum reasonable fees established under the provisions of
section three of this article.
(d) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
has continuing power and jurisdiction over claims in which
permanent total disability awards have been made after the eighth
day of April, one thousand nine hundred ninety-three.
(1) The commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall continuously monitor permanent total disability awards and
may, from time to time, after due notice to the claimant, reopen
a claim for reevaluation of the continuing nature of the
disability and possible modification of the award. At such times
as the commission may determine, the commission may require the
claimant to provide documents and other information to the
commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, including, but not
limited to, tax returns, financial records and affidavits
demonstrating level of income, recreational activities, work
activities, medications used and physicians or other medical or
rehabilitation providers treating or prescribing medication or
other services for the claimant; require the claimant to appear
under oath before the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, or its duly authorized representative and answer
questions; and suspend or terminate any benefits of a claimant who
willfully fails to provide the information or appear as required:
Provided, That the commission shall develop, implement and
complete a program as soon as reasonably possible that requires
each person receiving permanent total disability benefits on the
effective date of the amendment and reenactment of this section
in the year two thousand three, and each person who is awarded
those benefits thereafter, to submit the tax returns and the
affidavit described herein at least once: Provided, however, That
this requirement does not restrict the commission's authority to
require the information that may be required herein at such other
times as the commission may determine. The commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, may reopen a claim for reevaluation when,
in the commission's its sole discretion, it concludes that there
exists good cause to believe that the claimant no longer meets the
eligibility requirements under subdivision (n), section six of this article. The eligibility requirements, including any
vocational standards, shall be applied as those requirements are
stated at the time of a claim's reopening.
(2) Upon reopening a claim under this subsection, the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may take evidence,
have the claimant evaluated, make findings of fact and conclusions
of law and shall vacate, modify or affirm the original permanent
total disability award as the record requires. The claimant's
former employer shall not be a party to the reevaluation, but
shall be notified of the reevaluation and may submit any
information to the commission as the employer may elect. In the
event the claimant retains his or her award following the
reevaluation, the claimant's reasonable attorneys' fees incurred
in defending the award shall be paid by the workers' compensation
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable from the workers'
compensation fund. In addition, the workers' compensation
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, shall reimburse
a prevailing claimant for his or her costs in obtaining one
evaluation on each issue during the course of the reevaluation
with the reimbursement being made from the fund. The board of
managers shall adopt criteria for the determination of reasonable
attorneys' fees.
(3) This subsection shall not be applied to awards made under the provisions of subdivision (m), section six of this article.
The claimant may seek review of the commission's final order as
otherwise provided for in article five of this chapter for review
of orders granting or denying permanent disability awards.
(4) The commission shall establish by rule criteria for
review, reopening and reevaluating a claim under this subsection.
The commission shall at least quarterly provide a report of the
exercise of its authority to continuously monitor permanent total
disability awards under this section to the joint committee on
government and finance and the joint commission on economic
development.
(e) A claimant may have only one active request for a
permanent disability award pending in a claim at any one time.
Any new request that is made while another is pending shall be
consolidated into the former request.
§23-4-16a. Interest on benefits.
Whenever any award of temporary total, permanent partial or
permanent total disability benefits or dependent benefits is made
on or after the first day of July, one thousand nine hundred
seventy-one, and a protest is filed to the award or an appeal is
taken from the award by an employer only and not by the claimant
or dependent and the award is not ultimately denied or reduced
following the protest or appeal, the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall add interest to the award at the
simple rate of six percent per annum from the date the award would have been payable had the protest or appeal not been filed or
taken, exclusive of any period for which a continuance was granted
upon motion of any party other than the protesting or appealing
employer. Any interest payable shall be charged to the account
of the protesting or appealing employer to the extent that the
benefits upon which such interest is computed are charged to the
account of the employer.
§23-4-17. Commutation of periodical benefits.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, under
special circumstances and when it is considered advisable, may
commute periodical benefits to one or more lump-sum payments.
Upon the application of any claimant who has received an award of
partial or total disability, who is not a citizen of the United
States and desires to reside permanently beyond the territorial
limits of the United States, or upon the application of an alien
dependent of a deceased employee with respect of whose death award
of compensation has been made, the dependent residing in the
territorial limits of the United States at the time of the
decedent's death, and desiring to reside permanently beyond the
territorial limits of the United States, the commission, successor
to the commission, other private carrier or self-insured employer,
whichever is applicable, may commute into one lump-sum payment the
periodical payments to which the claimant or dependent would be
entitled, but at the rate of one-half the amount that would be
payable to a citizen of the United States under like circumstances. The lump-sum payment at the rate specified in this
section discharges all liability with respect to the award, but
in no event shall the award be paid until the claimant or
dependent has actually arrived and domiciled himself or herself
outside the territorial limits of the United States, except a
sufficient portion of the award to pay transportation and other
necessary expenses.
§23-4-20. Postmortem examinations.
The commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
after due notice to the employer and claimant, whenever it
considers it necessary, order an autopsy and may designate a duly
licensed physician to make the postmortem examination or
examinations that are necessary to determine the cause of the
deceased employee's death. The physician shall file with the
commission a written report of his or her findings. The claimant
and the employer, respectively, have the right to select a
physician of his, her or its own choosing and, at his or her or
its own expense, to participate in the postmortem examination.
The respective physicians selected by the claimant and the
employer have the right to concur in any report made by the
physician selected by the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, or each may file with the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, a separate report. In any case, including silicosis cases, in which either the employer or a
claimant requests that an autopsy be performed, the autopsy shall
be directed as provided in this section. In the event that a
claimant for compensation for the death refuses to consent and
permit the autopsy to be made all rights to compensation shall be
forfeited.
§23-4-24. Permanent total disability awards; retirement age;
limitations on eligibility and the introduction of
evidence; effects of other types of awards;
procedures; requests for awards; jurisdiction.
(a) Notwithstanding any provision of this chapter to the
contrary, except as stated below, no claimant shall be awarded
permanent total disability benefits arising under subdivision (d)
or (n), section six of this article or section eight-c of this
article who terminates active employment and is receiving full
old-age retirement benefits under the Social Security Act, 42 U.
S. C. §§401 and 402. Any claimant shall be evaluated only for the
purposes of receiving a permanent partial disability award
premised solely upon the claimant's impairments. This subsection
is not applicable in any claim in which the claimant has completed
the submission of his or her evidence on the issue of permanent
total disability prior to the later of the following: Termination
of active employment or the initial receipt of full old-age
retirement benefits under the Social Security Act. Once the
claimant has terminated active employment and has begun to receive
full old-age social security retirement benefits, the claimant may not produce additional evidence of permanent total disability
before the commission or the office of judges nor shall the claim
be remanded for the production of the evidence.
(b) The workers' compensation commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, has the sole and exclusive jurisdiction
to initially hear and decide any claim or request pertaining, in
whole or in part, to subdivision (d) or (n), section six of this
article. Any claim or request for permanent total disability
benefits arising under said subdivisions shall first be presented
to the commission as part of the initial claim filing or by way
of an application for modification or adjustment pursuant to
section sixteen of this article. The office of judges may
consider a claim only after the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, has entered an appropriate order.
§23-4-25. Permanent total disability benefits; reduction of
disability benefits for wages earned by claimant.
(a) After the eighth day of April, one thousand nine hundred
ninety-three, a reduction in the amount of benefits as specified
in subsection (b) of this section shall be made whenever benefits
are being paid for a permanent total disability award regardless
of when the benefits were awarded. This section is not applicable
to the receipt of medical benefits or the payment for medical
benefits, the receipt of permanent partial disability benefits,
the receipt of benefits by partially or wholly dependent persons, or to the receipt of benefits pursuant to the provisions of
subsection (e), section ten of this article. Prior to the
application of this section to any claimant, the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, shall give the claimant notice
of the effect of this section upon a claimant's award if and when
the claimant later earns wages.
(b) Whenever applicable benefits are paid to a claimant with
respect to the same time period in which the claimant has earned
wages as a result of his or her employment, the following
reduction in applicable benefits shall be made. The claimant's
applicable monthly benefits and monthly net wages received from
the current employment shall be added together. If the total
exceeds by more than one hundred twenty percent of the amount of
the claimant's monthly net wages earned during his or her last
employment prior to the award of permanent total disability
benefits, the excess shall be reduced by one dollar for each two
dollars that the claimant's monthly benefits and monthly net wages
exceed the one hundred twenty percent level: Provided, That in
no event shall applicable benefits be reduced below the minimum
weekly benefits as provided for in subdivisions (b) and (d),
section six of this article.
ARTICLE 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
(a) For the relief of persons who are receiving benefits
pursuant to a permanent total disability award in amounts less than thirty-three and one-third percent of the average weekly wage
for the state of West Virginia per month, and for the relief of
widows who are receiving benefits on account of the death of an
employee in amounts less than thirty-three and one-third percent
of the average weekly wage in the state of West Virginia per
month, and for the relief of children of employees deceased before
one thousand nine hundred sixty-seven, who are under the age of
twenty-three and who are full-time students, and for the relief
of other persons who are receiving dependents' benefits on account
of the death of an employee in amounts less than the specific
monetary amounts set forth in section ten, article four of this
chapter and in effect as of the first day of July, one thousand
nine hundred seventy-three, there is continued a separate fund,
heretofore known as the "Disabled Workmen's Relief Fund", and
which shall hereafter be known as the "Disabled Workers' Relief
Fund", which shall consist of any sums that are, from time to
time, made available to carry out the objects and purposes of this
article. The fund shall be in the custody of the state treasurer
and disbursements from the fund shall be made upon requisition
signed by the executive director to those persons entitled to
participate in the fund and in such amounts to each participant
that are provided in section three of this article.
(b) Effective upon termination of the commission, the
"Disabled Workers' Relief Fund" shall be administered by the
successor to the commission and the administrative duties assigned
to the executive director shall be transferred to the chief executive officer of the successor to the commission.
§23-4A-4. Mode of payment.
Payments to an individual entitled to participate in the
disabled workers' relief fund may be made from said fund by
separate check or may be made from said fund and from the workers'
compensation fund and, effective upon termination of the
commission, the old fund, by one check, but each such check drawn
on the two funds shall be so written as to show plainly the
payments made from each fund. No disbursements shall be made from
the workers' compensation fund or the old fund on account of any
provisions of this article.
§23-4A-9. Transfer of authority to the insurance commissioner.
Effective upon termination of the commission, the authority
to make the annual transfer as required in section eight of this
article shall transfer to the insurance commissioner.
ARTICLE 4B. COAL WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-9. Novation to the successor of the commission.
Upon the termination of the commission, all assets,
obligations and liabilities resulting from this article are
transferred to the successor of the commission. The state
treasurer and all other departments, agencies and boards shall
cooperate to ensure this novation occurs in a expedient and
orderly fashion. Thereafter, the company shall offer insurance
to provide for the benefits required by this article until at
least the thirtieth day of June, two thousand eight.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-5. Administration.
The Until the termination of the commission, the employers'
excess liability fund shall be administered by the executive
director, who shall employ any employees that are necessary to
discharge his or her duties and responsibilities under this
article. All payments of salaries and expenses of the employees
and all expenses peculiar to the administration of this article
shall be made by the state treasurer from the employers' excess
liability fund upon requisitions signed by the executive director.
§23-4C-6. Novation to the successor of the commission.
Upon the termination of the commission, all assets,
obligations and liabilities resulting from this article are
transferred to the successor of the commission. Thereafter, the
company shall offer insurance to provide for the benefits required
by this article until at least the thirtieth day of June, two
thousand eight. The state treasurer and all other departments,
agencies and boards shall cooperate to ensure this novation occurs
in an expedient and orderly fashion.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of
decision; procedures on claims; objections and
hearing.
(a) The workers' compensation commission, the successor to
the commission, other private insurance carriers and self-insured
employers may hear and determine all questions within its their
jurisdiction. In matters arising under articles three and four of this chapter, the commission, the successor to the commission,
other private insurance carriers and self-insured employers shall
promptly review and investigate all claims. The parties to a
claim shall file the information in support of their respective
positions as they consider proper. In addition, the commission,
the successor to the commission, other private insurance carriers
and self-insured employers may develop additional information that
it considers to be necessary in the interests of fairness to the
parties and in keeping with their fiduciary obligations owed to
the fund. With regard to any issue which is ready for a decision,
the commission, the successor to the commission, other private
insurance carriers and self-insured employers shall explain the
basis of its decisions.
(b) Except with regard to interlocutory matters and those
matters set forth in subsection (d) of this section, upon making
any decision, upon making or refusing to make any award or upon
making any modification or change with respect to former findings
or orders, as provided by section sixteen, article four of this
chapter, the commission, the successor to the commission, other
private insurance carriers and self-insured employers shall give
notice, in writing, to the employer, employee, claimant or
dependant as the case may be, of its action. The notice shall
state the time allowed for filing an objection to the finding.
The action of the commission, the successor to the commission,
other private insurance carriers and self-insured employers is
final unless the employer, employee, claimant or dependant shall, within thirty days after the receipt of the notice, object in
writing, to the finding. Unless an objection is filed within the
thirty-day period, the finding or action is final. This time
limitation is a condition of the right to litigate the finding or
action and hence jurisdictional. Any objection shall be filed
with the office of judges with a copy served upon the commission,
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, and other
parties in accordance with the procedures set forth in sections
eight and nine of this article. In all instances where a private
carrier, self-insured employer or a third-party administrator has
made claims decisions as authorized in this chapter, they shall
provide claimants notice of all claims decisions as provided for
by rules for self-administration promulgated by the board of
managers and shall be bound by each requirement imposed upon the
commission by this article.
(c) Where a finding or determination of the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, is protested only
by the employer, and the employer does not prevail in its protest,
and in the event the claimant is required to attend a hearing by
subpoena or agreement of counsel or at the express direction of
the commission or office of judges, then the claimant in addition
to reasonable traveling and other expenses shall be reimbursed for
loss of wages incurred by the claimant in attending the hearing.
(d) The commission or self-insured employer the successor to the commission, other private insurance carriers or and self-
insured employers, whichever is applicable may amend, correct or
set aside any order or decision on any issue entered by it which,
at the time of issuance or any time thereafter, is discovered to
be defective or clearly erroneous or the result of mistake,
clerical error or fraud, or otherwise not supported by the
evidence. Jurisdiction to take this action continues until the
expiration of two years from the date of entry of an order unless
the order is sooner affected by appellate action: Provided, That
corrective actions in the case of fraud may be taken at any time.
(e) All objections to orders of the commission, the successor
to the commission, other private insurance carriers or and self-
insured employers, whichever is applicable shall be styled in the
name of the workers' compensation commission issuing entity. All
appeals prosecuted from the office of judges shall either be in
the name of the workers' compensation commission or shall be
against the workers' compensation commission unless the parties
to the appeal are limited to a claimant and a self-insured
employer issuing party. In all actions under this article, the
workers' compensation commission shall be the party in interest
unless the parties to the appeal are limited to a claimant and a
self-insured employer.
§23-5-2. Application by employee for further adjustment of
claim; objection to modification; hearing.
In any case where an injured employee makes application in
writing for a further adjustment of his or her claim under the provisions of section sixteen, article four of this chapter and
the application discloses cause for a further adjustment, the
commission shall, after due notice to the employer, make the
modifications, or changes with respect to former findings or
orders in the claim that are justified. Any party dissatisfied
with any modification or change made by the commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, is, upon proper
and timely objection, entitled to a hearing, as provided in
section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
If it appears to the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, that an application filed
under section two of this article fails to disclose a progression
or aggravation in the claimant's condition, or some other fact or
facts which were not previously considered by the commission in
its former findings and which would entitle the claimant to
greater benefits than the claimant has already received, the
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, shall, within a reasonable time, notify the claimant
and the employer that the application fails to establish a prima
facie cause for reopening the claim. The notice shall be in
writing stating the reasons for denial and the time allowed for
objection to the decision of the commission. The claimant may, within thirty days after receipt of the notice, object in writing
to the finding. Unless the objection is filed within the thirty-
day period, no objection shall be allowed. This time limitation
is a condition of the right to objection and hence jurisdictional.
Upon receipt of an objection, the office of judges shall afford
the claimant an evidentiary hearing as provided in section nine
of this article.
§23-5-4. Application by employer for modification of award;
objection to modification; hearing.
In any case in which an employer makes application in writing
for a modification of any award previously made to an employee of
the employer, the commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, shall make a decision upon the
application. If the application discloses cause for a further
adjustment, the commission, the successor to the commission, other
private insurance carriers and self-insured employers, whichever
is applicable, shall, after due notice to the employee, make the
modifications or changes with respect to former findings or orders
that are justified. Any party dissatisfied with any modification
or change made by the commission or by the denial of an
application for modification is, upon proper and timely objection,
entitled to a hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
If in any case it appears to the commission, the successor to
the commission, other private insurance carriers and self-insured employers, whichever is applicable, that the application filed
pursuant to section four of this article fails to disclose some
fact or facts which were not previously considered by the
commission in its former findings, and which would entitle the
employer to any modification of the previous award, the commission
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, shall, within
sixty days from the receipt of the application, notify the
claimant and employer that the application fails to establish a
just cause for modification of the award. The notice shall be in
writing stating the reasons for denial and the time allowed for
objection to the decision of the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable. The employer may, within
thirty days after receipt of the notice, object in writing to the
decision. Unless the objection is filed within the thirty-day
period, no objection shall be allowed. This time limitation is
a condition of the right to objection and hence jurisdictional.
Upon receipt of the objection, the office of judges shall afford
the employer an evidentiary hearing as provided in section nine
of this article.
§23-5-7. Compromise and settlement.
With the exception of medical benefits for nonorthopedic
occupational disease claims, the claimant, the employer and the
workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers, whichever is applicable, may negotiate a final settlement of any
and all issues in a claim wherever the claim is in the
administrative or appellate processes. The office of judges shall
review the proposed agreement to determine if it is fair and
reasonable to the parties and shall ensure that each parties is
fully aware of their effects of the agreement including what each
party is conceding in exchange for the agreement. If the office
of judges concludes that the agreement is not fair or is not
reasonable or that one of the parties is not fully informed, the
agreement will not be approved. The decision on this question is
not reviewable. If the employer is not active in the claim, the
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, may negotiate a final settlement of any and all issues
in a claim except for medical benefits for nonorthopedic
occupational disease claims with the claimant and said settlement
upon approval shall be made a part of the claim record. The
office of judges shall send written notice of the settlement to
all parties and, where appropriated, to the appeal board of the
Supreme Court of Appeals. Except in cases of fraud, no issue that
is the subject of an approved settlement agreement may be reopened
by any party, including the commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable. Any settlement agreement may
provide for a lump-sum payment or a structured payment plan, or
any combination thereof, or any other basis as the parties may agree. If a self-insured employer later fails to make the agreed-
upon payment, the commission shall assume the obligation to make
the payments and shall recover the amounts paid or to be paid from
the self-insurer employer and its sureties or guarantors or both
as provided in section five and five-a, article two of this
chapter.
Each settlement agreement shall provide the toll-free number
of the West Virginia state bar association and shall provide the
injured worker with five business days to revoke the executed
agreement. The insurance commissioner may void settlement
agreements entered into by an unrepresented injured worker which
are determined to be unconscionable pursuant to criteria
established by rule of the commissioner.
The amendments to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-nine shall apply to all settlement agreements executed
after the effective date.
§23-5-8. Designation of office of administrative law judges;
powers of chief administrative law judge.
(a) The workers' compensation office of administrative law
judges previously created pursuant to chapter twelve, acts of the
Legislature, one thousand nine hundred ninety, second
extraordinary session, is hereby continued and designated to be
an integral part of the workers' compensation system of this
state. The office of judges shall be under the supervision of a
chief administrative law judge who shall be appointed by the governor with the advice and consent of the Senate.
(b) The chief administrative law judge shall be a person who
has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the
workers' compensation board of managers. The salary shall be
within the salary range for comparable chief administrative law
judges as determined by the state personnel board created by
section six, article six, chapter twenty-nine of this code. The
chief administrative law judge may only be removed by a vote of
two-thirds of the members of the workers' compensation board of
managers and shall not be removed except for cause and then only
after he or she has been presented in writing with a reason for
his or her removal and is given opportunity to respond and to
present evidence. Upon transfer of the office of judges to the
insurance commissioner, the chief administrative law judge shall
continue to serve as chief administrative law judge until the
thirty-first day of December, two thousand seven. Thereafter,
appointments of the chief administrative law judge shall be for
terms of four years beginning the first day of January, two
thousand eight, and the chief administrative law judge may be
removed only for cause by the vote of four members of the
industrial council. No other provision of this code purporting
to limit the term of office of any appointed official or employee
or affecting the removal of any appointed official or employee is
applicable to the chief administrative law judge.
(c) The chief administrative law judge shall employ
administrative law judges and other personnel that are necessary
for the proper conduct of a system of administrative review of
orders issued by the workers' compensation commission which orders
have been objected to by a party. The employees shall be in the
classified service of the state. Qualifications, compensation and
personnel practice relating to the employees of the office of
judges, other than the chief administrative law judge, shall be
governed by the provisions of this code and rules of the
classified service pursuant to article six, chapter twenty-nine
of this code. All additional administrative law judges shall be
persons who have been admitted to the practice of law in this
state and shall also have had at least two years of experience as
an attorney. The chief administrative law judge shall supervise
the other administrative law judges and other personnel which
collectively shall be referred to in this chapter as the office
of judges.
(d) The administrative expense of the office of judges shall
be included within the annual budget of the workers' compensation
commission and, upon termination of the commission, the insurance
commissioner.
(e) The office of judges shall, from time to time, promulgate
rules of practice and procedure for the hearing and determination
of all objections to findings or orders of the workers'
compensation commission. The office of judges shall not have the
power to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter twenty-nine-a of this
code. Any rules adopted pursuant to this section which are
applicable to the provisions of this article are not subject to
sections nine through sixteen, inclusive, article three, chapter
twenty-nine-a of this code. The office of judges shall follow the
remaining provisions of said chapter for giving notice to the
public of its actions and the holding of hearings or receiving of
comments on the rules.
(f) The chief administrative law judge has the power to hear
and determine all disputed claims in accordance with the
provisions of this article, establish a procedure for the hearing
of disputed claims, take oaths, examine witnesses, issue
subpoenas, establish the amount of witness fees, keep records and
make reports that are necessary for disputed claims and exercise
any additional powers, including the delegation of powers to
administrative law judges or hearing examiners that are necessary
for the proper conduct of a system of administrative review of
disputed claims. The chief administrative law judge shall make
reports that are requested of him or her by the workers'
compensation board of managers.
(g) Effective upon termination of the commission, the office
of judges and the board of review shall be transferred to the
insurance commissioner, which shall have the oversight and
administrative authority heretofore provided to the executive
director and the board of managers.
§23-5-9. Hearings on objections to commission or self-insured employer decisions; mediation; remand.
(a) Objections to a decision of the workers' compensation
commission, the successor to the commission, other private
insurance carriers or and self-insured employers, whichever is
applicable, made pursuant to the provisions of section one of this
article shall be filed with the office of judges. Upon receipt
of an objection, the office of judges shall notify the commission,
the successor to the commission, other private insurance carriers
or and self-insured employers, whichever is applicable, and all
other parties of the filing of the objection. The office of
judges shall establish by rule promulgated in accordance with the
provisions of subsection (e), section eight of this article an
adjudicatory process that enables parties to present evidence in
support of their positions and provides an expeditious resolution
of the objection. The employer, the claimant and the commission,
the successor to the commission, other private insurance carriers
or and self-insured employers, whichever is applicable, shall be
notified of any hearing at least ten days in advance. The office
of judges shall review and amend, or modify, as necessary its
procedural rules by the first day of July, two thousand seven.
(b) The office of judges shall establish a program for
mediation to be conducted in accordance with the requirements of
rule twenty-five of the West Virginia trial court rules. The
parties may agree that the result of the mediation is binding.
A case may be referred to mediation by the administrative law
judge on his or her own motion, on motion of a party or by agreement of the parties. Upon issuance of an order for
mediation, the office of judges shall assign a mediator from a
list of qualified mediators maintained by the West Virginia state
bar.
(c) The office of judges shall keep full and complete records
of all proceedings concerning a disputed claim. Subject to the
rules of practice and procedure promulgated pursuant to section
eight of this article, the record upon which the matter shall be
decided shall include any evidence submitted by a party to the
office of judges, evidence taken at hearings conducted by the
office of judges and any documents in the commission's claim files
which relate to the subject matter of the objection. The record
may include evidence or documents submitted in electronic form or
other appropriate medium in accordance with the rules of practice
and procedure. The office of judges is not bound by the usual
common law or statutory rules of evidence.
(d) All hearings shall be conducted as determined by the
chief administrative law judge pursuant to the rules of practice
and procedure promulgated pursuant to section eight of this
article. Upon consideration of the designated record, the chief
administrative law judge or other authorized adjudicator within
the office of judges shall, based on the determination of the
facts of the case and applicable law, render a decision affirming,
reversing or modifying the commission's action protested. The
decision shall contain findings of fact and conclusions of law and
shall be mailed to all parties.
(e) The rule authorized by subsection (a) of this section
shall be promulgated on or before the first day of October, two
thousand three. Until the rule is promulgated, any rules
previously promulgated shall remain in full force and effect.
(f) The office of judges may remand a claim to the
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, for further development of the facts or administrative
matters as, in the opinion of the administrative law judge, may
be necessary for a full and complete disposition of the case. The
administrative law judge shall establish a time within which the
commission, the successor to the commission, other private
insurance carriers and self-insured employers, whichever is
applicable, must report back to the administrative law judge.
(g) The decision of the workers' compensation office of
judges regarding any objections to a decision of the workers'
compensation commission, the successor to the commission, other
private insurance carriers or and self-insured employers,
whichever is applicable, is final and benefits shall be paid or
denied in accordance with the decision unless the decision is
subsequently appealed and reversed in accordance with the
procedures set forth in this article.
§23-5-10. Appeal from administrative law judge decision to
appeal board.
The employer, claimant, workers' compensation commission, the
successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, may appeal to the
appeal board created in section eleven of this article for a
review of a decision by an administrative law judge. No appeal
or review shall lie unless application therefor be made within
thirty days of receipt of notice of the administrative law judge's
final action or in any event within sixty days of the date of such
final action, regardless of notice and, unless the application for
appeal or review is filed within the time specified, no such
appeal or review shall be allowed, such time limitation being
hereby declared to be a condition of the right of such appeal or
review and hence jurisdictional.
§23-5-11. Workers' compensation board of review generally.
(a) On the thirty-first day of January, two thousand four,
the workers' compensation appeal board heretofore established in
this section is hereby abolished.
(b) There is hereby created the "workers' compensation board
of review", which may also be referred to as "the board of review"
or "the board". Effective the first day of February, two thousand
four, the board of review shall exercise exclusive jurisdiction
over all appeals from the workers' compensation office judges
including any and all appeals pending with the board of appeals
on the thirty-first day of January, two thousand four.
(c) The board shall consist of three members.
(d) The governor shall appoint, from names submitted by the
"workers' compensation board of review nominating committee", with
the advice and consent of the Senate, three qualified attorneys to serve as members of the board of review. If the governor does
not select a nominee for any vacant position from the names
provided by the nominating committee, he shall notify the
nominating committee of that circumstance and the committee shall
provide additional names for consideration by the governor. A
member of the board of review may be removed by the governor for
official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance and then only after notice and
opportunity to respond and present evidence. No more than two of
the members of the board may be of the same political party. The
members of the board of review shall be paid an annual salary of
eighty-five thousand dollars. Members are entitled to be
reimbursed for actual and necessary travel expenses incurred in
the discharge of official duties in a manner consistent with the
guidelines of the travel management office of the department of
administration.
(e) The nominating committee shall consist of the following
members: (1) The president of the West Virginia state bar who
will serve as the chairperson of the committee; (2) an active
member of the West Virginia state bar workers' compensation
committee selected by the major trade association representing
employers in this state; (3) an active member of the West Virginia
state bar workers' compensation committee selected by the highest
ranking officer of the major employee organization representing
workers in this state; (4) the dean of the West Virginia
university school of law; and (5) the chairman of the judicial investigation committee.
(f) The nominating committee is responsible for reviewing and
evaluating candidates for possible appointment to the board of
review by the governor. In reviewing candidates, the nominating
committee may accept comments from and request information from
any person or source.
(g) Each member of the nominating committee may submit up to
three names of qualified candidates for each position on the board
of review: Provided, That the member of the nominating committee
selected by the major trade organization representing employers
of this state shall submit at least one name of a qualified
candidate for each position on the board who either is, or who
represents, small business employers of this state. After careful
review of the candidates, the committee shall select a minimum of
one candidate for each position on the board.
(h) No later than the first day of November, two thousand
three, the nominating committee shall present to the governor its
list of candidates for the initial board of review. The governor
shall appoint the initial board no later than the thirty-first day
of December, two thousand three: Provided, That upon the thirty-
first day of December, two thousand three, the deadline for
filling all positions of the board of review will be extended, as
necessary, if, on or before that date, the governor has timely
requested additional names from the nominating committee.
Thereafter, the nominating committee shall meet at the request of
the governor in order to make timely recommendations to the governor for appointees to the board as the initial and subsequent
terms expire or become vacant. The recommendations shall be
submitted no later than thirty days prior to the expiration of any
term.
(i) Of the initial appointments, one member shall be
appointed for a term ending the thirty-first day of December, two
thousand six; one member shall be appointed for a term ending the
thirty-first day of December, two thousand eight; and one member
shall be appointed for a term ending the thirty-first day of
December, two thousand ten. Thereafter, the appointments shall
be for six-year terms.
(j) A member of the board of review must, at the time he or
she takes office and thereafter during his or her continuance in
office, be a resident of this state, be a member in good standing
of the West Virginia state bar, have a minimum of ten years'
experience as an attorney admitted to practice law in this state
prior to appointment and have a minimum of five years' experience
in preparing and presenting cases or hearing actions and making
decisions on the basis of the record of those hearings before
administrative agencies, regulatory bodies or courts of record at
the federal, state or local level.
(k) No member of the board of review may hold any other
office, or accept any appointment or public trust, nor may he or
she become a candidate for any elective public office or
nomination thereto. Violation of this subsection requires the
member to vacate his or her office. No member of the board of review may engage in the practice of law during his or her term
of office.
(l) A vacancy occurring on the board other than by expiration
of a term shall be filled in the manner original appointments were
made, for the unexpired portion of the term.
(m) The board shall designate one of its members in rotation
to be chairman of the board for as long as the board may determine
by order made and entered of record. In the absence of the
chairman, any other member designated by the members present shall
act as chairman.
(n) The board of review shall meet as often as necessary to
hold review hearings, at such times and places as the chairman may
determine. Two members shall be present in order to conduct
review hearings or other business. All decisions of the board
shall be determined by a majority of the members of the board.
(o) The board of review shall make general rules regarding
the pleading, including the form of the petition and any
responsive pleadings, practice and procedure to be used by the
board.
(p) The board of review may hire a clerk and other
professional and clerical staff necessary to carry out the
requirements of this article. It is the duty of the clerk of the
board of review to attend in person, or by deputy, all the
sessions of the board, to obey its orders and directions, to take
care of and preserve in an office, kept for the purpose, all
records and papers of the board and to perform other duties as prescribed by law or required of him or her by the board. All
employees of the board shall serve at the will and pleasure of the
board. The board's employees are exempt from the salary schedule
or pay plan adopted by the division of personnel. All personnel
of the board of review shall be under the supervision of the
chairman of the board of review.
(q) If deemed necessary by the board, the board may, through
staffing or other resources, procure assistance in review of
medical portions of decisions.
(r) Upon the conclusion of any hearing, or prior thereto with
concurrence of the parties, the member shall promptly determine
the matter and make an award in accordance with his or her
determination.
(s) The award shall become a part of the commission file. A
copy of the award shall be sent forthwith by mail to all parties
in interest.
(t) The award is final when entered. The award shall contain
a statement explaining the rights of the parties to an appeal to
the board of review and the applicable time limitations involved.
(u) The board shall submit a budget to the executive director
for inclusion in the budget for the workers' compensation
commission sufficient to adequately provide for the administrative
and other operating expenses of the board.
(v) The board shall report monthly to the board of managers
on the status of all claims on appeal.
(w) Effective upon termination of the commission, the board of review shall be transferred to the insurance commissioner which
shall have the oversight and administrative authority heretofore
provided to the executive director and the board of managers.
§23-5-12. Appeal to board; procedure; remand and supplemental
hearing.
(a) Any employer, employee, claimant or dependent, who shall
feel aggrieved at any final action of the administrative law judge
taken after a hearing held in accordance with the provisions of
section nine of this article, shall have the right to appeal to
the board created in section eleven of this article for a review
of such action. The workers' compensation commission, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall likewise
have the right to appeal to the board any final action taken by
the administrative law judge. The aggrieved party shall file a
written notice of appeal with the office of judges directed to the
board, within thirty days after receipt of notice of the action
complained of, or in any event, regardless of notice, within sixty
days after the date of the action complained of, and unless the
notice of appeal is filed within the time specified, no appeal
shall be allowed, the time limitation is a condition of the right
to appeal and hence jurisdictional. The office of judges shall
notify the other parties immediately upon the filing of a notice
of appeal. The notice of appeal shall state the ground for review
and whether oral argument is requested. The office of judges
shall forthwith make up a transcript of the proceedings before the office of judges and certify and transmit it to the board. The
certificate shall incorporate a brief recital of the proceedings
in the case and recite each order entered and the date thereof.
(b) The board shall set a time and place for the hearing of
arguments on each claim and shall notify the interested parties
thereof. The review by the board shall be based upon the record
submitted to it and such oral argument as may be requested and
received. The board may affirm, reverse, modify or supplement the
decision of the administrative law judge and make such disposition
of the case as it determines to be appropriate. Briefs may be
filed by the interested parties in accordance with the rules of
procedure prescribed by the board. The board may affirm the order
or decision of the administrative law judge or remand the case for
further proceedings. It shall reverse, vacate or modify the order
or decision of the administrative law judge if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative law judge's findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of
the administrative law judge; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) After a review of the case, the board shall issue a
written decision to be filed with the commission and a copy
thereof sent by mail to the parties.
(1) All decisions, findings of fact and conclusions of law of
the board of review shall be in writing and state with specificity
the laws and facts relied upon to sustain, reverse or modify the
administrative law judge's decision.
(2) Decisions of the board of review shall be made by a
majority vote of the board of review.
(3) A decision of the board of review is binding upon the
executive director and the commission and the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, with respect to the parties
involved in the particular appeal. The executive director, the
successor to the commission, other private insurance carriers and
self-insured employers, whichever is applicable, shall have the
right to seek judicial review of a board of review decision
irrespective of whether or not he or she appeared or participated
in the appeal to the board of review.
(d) Instead of affirming, reversing or modifying the decision
of the administrative law judge, the board may, upon motion of any
party or upon its own motion, for good cause shown, to be set
forth in the order of the board, remand the case to the chief
administrative law judge for the taking of such new, additional
or further evidence as in the opinion of the board may be
necessary for a full and complete development of the facts of the case. In the event the board shall remand the case to the chief
administrative law judge for the taking of further evidence, the
administrative law judge shall proceed to take new, additional or
further evidence in accordance with any instruction given by the
board within thirty days after receipt of the order remanding the
case. The chief administrative law judge shall give to the
interested parties at least ten days' written notice of the
supplemental hearing, unless the taking of evidence is postponed
by agreement of parties, or by the administrative law judge for
good cause. After the completion of a supplemental hearing, the
administrative law judge shall, within sixty days, render his or
her decision affirming, reversing or modifying the former action
of the administrative law judge. The decision shall be appealable
to, and proceeded with by the board of review in the same manner
as other appeals. In addition, upon a finding of good cause, the
board may remand the case to the workers' compensation commission,
the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, for further
development. Any decision made by the commission, the successor
to the commission, other private insurance carriers and self-
insured employers, whichever applicable, following a remand shall
be subject to objection to the office of judges and not to the
board. The board may remand any case as often as in its opinion
is necessary for a full development and just decision of the case.
(e) All appeals from the action of the administrative law
judge shall be decided by the board at the same session at which they are heard, unless good cause for delay thereof be shown and
entered of record.
(f) In all proceedings before the board, any party may be
represented by counsel.
§23-5-15. Appeals from final decisions of board to supreme court
of appeals; procedure; costs.
(a) Review of any final decision of the board, including any
order of remand, may be prosecuted by either party or by the
workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, to the supreme court of appeals within
thirty days from the date of the final order by filing a petition
therefor with the court against the board and the adverse party
or parties as respondents. Unless the petition for review is
filed within the thirty-day period, no appeal or review shall be
allowed, such time limitation is a condition of the right to such
appeal or review and hence jurisdictional. The clerk of the
supreme court of appeals shall notify each of the respondents and
the workers' compensation commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, of the filing of such
petition. The board shall, within ten days after receipt of the
notice, file with the clerk of the court the record of the
proceedings had before it, including all the evidence. The court
or any judge thereof in vacation may thereupon determine whether
or not a review shall be granted. If review is granted to a nonresident of this state, he or she shall be required to execute
and file with the clerk before an order or review shall become
effective, a bond, with security to be approved by the clerk,
conditioned to perform any judgment which may be awarded against
him or her. The board may certify to the court and request its
decision of any question of law arising upon the record, and
withhold its further proceeding in the case, pending the decision
of court on the certified question, or until notice that the court
has declined to docket the same. If a review is granted or the
certified question is docketed for hearing, the clerk shall notify
the board and the parties litigant or their attorneys and the
workers' compensation commission, the successor to the commission,
other private insurance carriers and self-insured employers,
whichever is applicable, of that fact by mail. If a review is
granted or the certified question docketed, the case shall be
heard by the court in the same manner as in other cases, except
that neither the record nor briefs need be printed. Every review
granted or certified question docketed prior to thirty days before
the beginning of the term, shall be placed upon the docket for
that term. The attorney general shall, without extra
compensation, represent the board in such cases. The court shall
determine the matter brought before it and certify its decision
to the board and to the commission. The cost of the proceedings
on petition, including a reasonable attorney's fee, not exceeding
thirty dollars to the claimant's attorney, shall be fixed by the
court and taxed against the employer if the latter is unsuccessful. If the claimant, or the commission (in case the
latter is the applicant for review) is unsuccessful, the costs,
not including attorney's fees, shall be taxed against the
commission, payable out of the workers' compensation fund, or
shall be taxed against the claimant, in the discretion of the
court. But there shall be no cost taxed upon a certified
question.
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by the
board and give deference to the board's findings, reasoning and
conclusions, in accordance with subsections (c) and (d) of this
section.
(c) If the decision of the board represents an affirmation of
a prior ruling by both the commission and the office of judges
that was entered on the same issue in the same claim, the decision
of the board may be reversed or modified by the supreme court of
appeals only if the decision is in clear violation of
constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board's
material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct
a de novo re-weighing of the evidentiary record. If the court
reverses or modifies a decision of the board pursuant to this
subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision of
the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was based upon the
board's material misstatement or mischaracterization of particular
components of the evidentiary record.
(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the office
of judges that was entered on the same issue in the same claim,
the decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear
violation of constitutional or statutory provisions, is clearly
the result of erroneous conclusions of law, or is so clearly wrong
based upon the evidentiary record that even when all inferences
are resolved in favor of the board's findings, reasoning and
conclusions, there is insufficient support to sustain the
decision. The court may not conduct a de novo re-weighing of the
evidentiary record. If the court reverses or modifies a decision
of the board pursuant to this subsection, it shall state with
specificity the basis for the reversal or modification and the
manner in which the decision of the board clearly violated
constitutional or statutory provisions, resulted from erroneous
conclusions of law, or was so clearly wrong based upon the
evidentiary record that even when all inferences are resolved in
favor of the board's findings, reasoning and conclusions, there
is insufficient support to sustain the decision.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol data; distribution of net
terminal income; remittance through electronic
transfer of funds; establishment of accounts and
nonpayment penalties; commission control of
accounting for net terminal income; settlement of
accounts; manual reporting and payment may be
required; request for reports; examination of
accounts and records.
(a) The commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol
documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall
be remitted to the commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the commission. Licensed racetracks
must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its
actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack, and the resulting amount
after the deduction is the net terminal income. The amount
deducted for administrative costs and expenses of the commission
may not exceed four percent of gross terminal income: Provided,
That any amounts deducted by the commission for its actual costs
and expenses that exceeds its actual costs and expenses shall be
deposited into the state lottery fund. For all fiscal years
beginning on or after the first day of July, two thousand one, the
commission shall not receive an amount of gross terminal income
in excess of the amount of gross terminal income received during
the fiscal year ending on the thirtieth day of June, two thousand
one, but four percent of any amount of gross terminal income
received in excess of the amount of gross terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be deposited into the fund established in
section eighteen-a, article twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after the first
day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be divided as set out in section ten-b of this
article. The licensed racetrack's share is in lieu of all lottery
agent commissions and is considered to cover all costs and
expenses required to be expended by the licensed racetrack in
connection with video lottery operations. The division shall be made as follows:
(1) The commission shall receive thirty percent of net
terminal income, which shall be paid into the state lottery fund
as provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee, and
used for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this
code, on and after the first day of July, two thousand five, the
rate shall be seven percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Beginning the first day of July, one thousand nine
hundred ninety-nine, and thereafter, any amount in excess of the
two percent received during the fiscal year one thousand nine
hundred ninety-nine by a county in which a racetrack is located
that has participated in the West Virginia thoroughbred
development fund since on or before the first day of January, one
thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided
among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine
hundred ninety-nine, and thereafter, any amount in excess of the
two percent received during the fiscal year one thousand nine
hundred ninety-nine by a county in which a racetrack other than
a racetrack described in paragraph (A) of this proviso is located
and where the racetrack has been located in a municipality within
the county since on or before the first day of January, one
thousand nine hundred ninety-nine, shall be divided, if
applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other that a county
described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen
of this code and the West Virginia greyhound breeding development fund created under section ten of said article shall receive an
equal share of a total of not less than one and one-half percent
of the net terminal income: Provided, That for any racetrack
which does not have a breeder's program supported by the
thoroughbred development fund or the greyhound breeding
development fund, the one and one-half percent provided for in
this subdivision shall be deposited in the special fund
established by the licensee and used for payment of regular
purses, in addition to other amounts provided in subdivision (2)
of this subsection and article twenty-three, chapter nineteen of
this code.
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code.
(7) A licensee shall receive forty-seven percent of net
terminal income.
(8) (A) The tourism promotion fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three,
the tourism commission shall transfer from the tourism promotion
fund five million dollars of the three percent of the net terminal
income described in this section and section ten-b of this article
into the fund administered by the West Virginia economic
development authority pursuant to section seven, article fifteen, chapter thirty-one of this code, five million dollars into the
capitol renovation and improvement fund administered by the
department of administration pursuant to section six, article
four, chapter five-a of this code and five million dollars into
the tax reduction and federal funding increased compliance fund;
and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this three percent
of net terminal income and the three percent of net terminal
income described in paragraph (B), subdivision (8), subsection
(a), section ten-b of this article shall be distributed as
provided in this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the tourism promotion fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the development office promotion fund
created under section three-b, article two, chapter five-b of this
code;
(iii) 0.5 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the research challenge fund created under
section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal
income described in this section and in section ten-b of this
article shall be deposited into the capitol renovation and
improvement fund administered by the department of administration
pursuant to section six, article four, chapter five-a of this
code; and
(v) 0.0625 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the 2004 capitol complex parking garage
fund administered by the department of administration pursuant to
section five-a, article four, chapter five-a of this code; and
(9) On and after the first day of July, two thousand five,
seven percent of net terminal income shall be deposited into the
workers' compensation debt reduction fund created in section five,
article two-d, chapter twenty-three of this code; and
(9) (10) The remaining one percent of net terminal income
shall be deposited as follows:
(A) For the fiscal year beginning the first day of July, two
thousand three, the veterans memorial program shall receive one
percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of
the state capitol complex in Charleston, West Virginia. The
moneys shall be deposited in the state treasury in the division
of culture and history special fund created under section three,
article one-i, chapter twenty-nine of this code: Provided, That
only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual
bonded indebtedness on the veterans memorial, not more than twenty
thousand dollars of the one percent of net terminal income
provided for in this subdivision shall be deposited into a special
revenue fund in the state treasury, to be known as the "John F.
'Jack' Bennett Fund". The moneys in this fund shall be expended
by the division of veterans affairs to provide for the placement
of markers for the graves of veterans in perpetual cemeteries in
this state. The division of veterans affairs shall promulgate
legislative rules pursuant to the provisions of article three,
chapter twenty-nine-a of this code specifying the manner in which
the funds are spent, determine the ability of the surviving spouse
to pay for the placement of the marker and setting forth the
standards to be used to determine the priority in which the
veterans grave markers will be placed in the event that there are
not sufficient funds to complete the placement of veterans grave
markers in any one year, or at all. Upon payment in full of the
bonded indebtedness on the veterans memorial, one hundred thousand
dollars of the one percent of net terminal income provided for in
this subdivision shall be deposited in the special fund in the
division of culture and history created under section three,
article one-i, chapter twenty-nine of this code and be expended
by the division of culture and history to establish a West
Virginia veterans memorial archives within the cultural center to
serve as a repository for the documents and records pertaining to
the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five
hundred thousand dollars of the one percent of net terminal income
shall be deposited in the state treasury in a special fund of the
department of administration, created under section five, article
four, chapter five-a of this code, to be used for construction and
maintenance of a parking garage on the state capitol complex; and
the remainder of the one percent of net terminal income shall be
deposited in equal amounts in the capitol dome and improvements
fund created under section two, article four, chapter five-a of
this code and cultural facilities and capitol resources matching
grant program fund created under section three, article one of
this chapter.
(B) For each fiscal year beginning after the thirtieth day of
June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net
terminal income shall be deposited in the state treasury in a
special fund of the department of administration, created under
section five, article four, chapter five-a of this code, to be
used for construction and maintenance of a parking garage on the
state capitol complex; and
(ii) The remainder of the one percent of net terminal income
and all of the one percent of net terminal income described in
paragraph (B), subdivision (9), subsection (a), section ten-b of
said this article twenty-two-a shall be distributed as follows:
The net terminal income shall be deposited in equal amounts into
the capitol dome and capitol improvements fund created under section two, article four, chapter five-a of this code and the
cultural facilities and capitol resources matching grant program
fund created under section three, article one, chapter twenty-nine
of this code until a total of one million five hundred thousand
dollars is deposited into the cultural facilities and capitol
resources matching grant program fund; thereafter, the remainder
shall be deposited into the capitol dome and capitol improvements
fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the commission on dates established by the
commission. Upon a licensed racetrack's failure to maintain this
balance, the commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax
delinquency under chapter eleven of this code. The interest shall
begin to accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each
licensed racetrack shall report to the commission any
discrepancies between the commission's statement and each terminal's mechanical and electronic meter readings. The licensed
racetrack is solely responsible for resolving income discrepancies
between actual money collected and the amount shown on the
accounting meters or on the commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the commission's records cannot be reconciled, final
disposition of the matter shall be determined by the commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal
to the total amount of cash inserted into each video lottery
terminal operated by a licensee, minus the total value of game
credits which are cleared from the video lottery terminal in
exchange for winning redemption tickets, and remit the amount as
generated from its terminals during the reporting period. The
remittance shall be sealed in a properly addressed and stamped
envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed
through electronic funds transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the commission. The commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(i) The commission has the right to examine all accounts,
bank accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
commission.
§29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of
July, two thousand one, any amount of net terminal income
generated annually by a licensed racetrack in excess of the amount
of net terminal income generated by that licensed racetrack during
the fiscal year ending on the thirtieth day of June, two thousand
one, shall be divided as follows:
(1) The commission shall receive forty-one percent of net
terminal income, which the commission shall deposit in the state
excess lottery revenue fund created in section eighteen-a, article
twenty-two of this chapter;
(2) Until the first day of July, two thousand five, eight
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee and used
for payment of regular purses in addition to other amounts
provided for in article twenty-three, chapter nineteen of this
code; on and after the first day of July, two thousand five, the
rate shall be four percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article
is in excess of the two percent received during fiscal year one
thousand nine hundred ninety-nine by a county in which a racetrack
is located that has participated in the West Virginia thoroughbred
development fund since on or before the first day of January, one
thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, the fifty percent to be divided
among the municipalities on a per capita basis as determined by
the most recent decennial United States census of population; and
(B) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article
is in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack
other than a racetrack described in paragraph (A) of this proviso
is located and where the racetrack has been located in a
municipality within the county since on or before the first day
of January, one thousand nine hundred ninety-nine, shall be
divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any county other than a county described
in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen
of this code and the West Virginia greyhound breeding development
fund created under section ten, article twenty-three, chapter
nineteen of this code shall receive an equal share of a total of
not less than one and one-half percent of the net terminal income:
Provided, That for any racetrack which does not have a breeder's program supported by the thoroughbred development fund or the
greyhound breeding development fund, the one and one-half percent
provided for in this subdivision shall be deposited in the special
fund established by the licensee and used for payment of regular
purses, in addition to other amounts provided for in subdivision
(2) of this subsection and article twenty-three, chapter nineteen
of this code;
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-two percent of net
terminal income;
(8) The tourism promotion fund established in section twelve,
article two, chapter five-b of this code shall receive three
percent of the net terminal income: Provided, That for each
fiscal year beginning after the thirtieth day of June, two
thousand four, this three percent of net terminal income shall be
distributed pursuant to the provisions of paragraph (B),
subdivision (8), subsection (c), section ten of this article; and
(9) On and after the first day of July, two thousand five,
four percent of net terminal income shall be deposited into the
workers' compensation debt reduction fund created in section five,
article two-d, chapter twenty-three of this code: Provided, That
in any fiscal year when the amount of money generated by this
subdivision together with the total allocation transferred by the operation of subdivision (9), subsection (c), section ten of this
article totals eleven million dollars, all subsequent
distributions under this subdivision shall be deposited in the
special fund established by the licensee, and used for payment of
regular purses in addition to other amounts provided for in
article twenty-three, chapter nineteen of this code; and
(9) (10) (A) One percent of the net terminal income shall be
deposited in equal amounts in the capitol dome and improvements
fund created under section two, article four, chapter five-a of
this code and cultural facilities and capitol resources matching
grant program fund created under section three, article one of
this chapter; and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this one percent of
net terminal income shall be distributed pursuant to the
provisions of subparagraph (ii), paragraph (B), subdivision (9),
subsection (c), section ten of this article.
(b) The commission may establish orderly and effective
procedures for the collection and distribution of funds under this
section in accordance with the provisions of this section and
section ten of this article.
CHAPTER 33. INSURANCE.
ARTICLE 1. DEFINITIONS.
§33-1-2. Insurer.
Insurer is every person engaged in the business of making contracts of insurance. Insurer includes private carrier as that
term is used in chapter twenty-three of this code.
§33-1-10. Kinds of insurance defined.
The following definitions of kinds of insurance are not
mutually exclusive and, if reasonably adaptable thereto, a
particular coverage may be included under one or more of such
definitions:
(a) Life insurance. -- Life insurance is insurance on human
lives including endowment benefits, additional benefits in the
event of death or dismemberment by accident or accidental means,
additional benefits for disability and annuities.
(b) Accident and sickness. -- Accident and sickness
insurance is insurance against bodily injury, disability or death
by accident or accidental means, or the expense thereof, or
against disability or expense resulting from sickness and
insurance relating thereto. Group credit accident and health
insurance may also include loss of income insurance which is
insurance against the failure of a debtor to pay his or her
monthly obligation due to involuntary loss of employment. For the
purposes of this definition, involuntary loss of employment means
the debtor loses employment income (salary or wages) as a result
of unemployment caused by individual or mass layoff, general
strikes, labor disputes, lockout or termination by employer for
other than willful or criminal misconduct. Any or all of the
above-mentioned perils may be included in an insurance policy, at
the discretion of the policyholder.
(c) Fire. -- Fire insurance is insurance on real or personal
property of every kind and interest therein, against loss or
damage from any or all hazard or cause, and against loss
consequential upon such loss or damage, other than noncontractual
liability for any such loss or damage. Fire insurance shall also
include miscellaneous insurance as defined in paragraph (12),
subdivision (e) of this section.
(d) Marine insurance is insurance:
(1) Against any and all kinds of loss or damage to vessels,
craft, aircraft, cars, automobiles and vehicles of every kind, as
well as all goods, freight, cargoes, merchandise, effects,
disbursements, profits, moneys, bullion, precious stones,
securities, chooses in action, evidences of debt, valuable papers,
bottomry and respondentia interests and all other kinds of
property and interests therein, in respect to, appertaining to or
in connection with any and all risks or perils of navigation,
transit or transportation, including war risks, on or under any
seas or other waters, on land (above or below ground), or in the
air, or while being assembled, packed, crated, baled, compressed
or similarly prepared for shipment or while awaiting the same or
during any delays, storage, transshipment, or reshipment incident
thereto, including marine builders' risks and all personal
property floater risks;
(2) Against any and all kinds of loss or damage to person or
to property in connection with or appertaining to a marine, inland
marine, transit or transportation insurance, including liability for loss of or damage to either, arising out of or in connection
with the construction, repair, operation, maintenance or use of
the subject matter of such insurance (but not including life
insurance or surety bonds nor insurance against loss by reason of
bodily injury to the person arising out of the ownership,
maintenance or use of automobiles);
(3) Against any and all kinds of loss or damage to precious
stones, jewels, jewelry, gold, silver and other precious metals,
whether used in business or trade or otherwise and whether the
same be in course of transportation or otherwise;
(4) Against any and all kinds of loss or damage to bridges,
tunnels and other instrumentalities of transportation and
communication (excluding buildings, their furniture and
furnishings, fixed contents and supplies held in storage) unless
fire, windstorm, sprinkler leakage, hail, explosion, earthquake,
riot or civil commotion or any or all of them are the only hazards
to be covered;
(5) Against any and all kinds of loss or damage to piers,
wharves, docks and ships, excluding the risks of fire, windstorm,
sprinkler leakage, hail, explosion, earthquake, riot and civil
commotion and each of them;
(6) Against any and all kinds of loss or damage to other
aids to navigation and transportation, including dry docks and
marine railways, dams and appurtenant facilities for control of
waterways; and
(7) Marine protection and indemnity insurance, which is insurance against, or against legal liability of the insured for,
loss, damage or expense arising out of, or incident to, the
ownership, operation, chartering, maintenance, use, repair or
construction of any vessel, craft or instrumentality in use in
ocean or inland waterways, including liability of the insured for
personal injury, illness or death or for loss of or damage to the
property of another person.
(e) Casualty. -- Casualty insurance includes:
(1) Vehicle insurance, which is insurance against loss of or
damage to any land vehicle or aircraft or any draft or riding
animal or to property while contained therein or thereon or being
loaded therein or therefrom, from any hazard or cause, and against
any loss, liability or expense resulting from or incident to
ownership, maintenance or use of any such vehicle, aircraft or
animal; together with insurance against accidental death or
accidental injury to individuals, including the named insured,
while in, entering, alighting from, adjusting, repairing or
cranking, or caused by being struck by any vehicle, aircraft or
draft or riding animal, if such insurance is issued as a part of
insurance on the vehicle, aircraft or draft or riding animal;
(2) Liability insurance, which is insurance against legal
liability for the death, injury or disability of any human being,
or for damage to property; and provisions for medical, hospital,
surgical, disability benefits to injured persons and funeral and
death benefits to dependents, beneficiaries or personal
representatives of persons killed, irrespective of legal liability of the insured, when issued as an incidental coverage with or
supplemental to liability insurance;
(3) Burglary and theft insurance, which is insurance against
loss or damage by burglary, theft, larceny, robbery, forgery,
fraud, vandalism, malicious mischief, confiscation, or wrongful
conversion, disposal or concealment, or from any attempt at any
of the foregoing, including supplemental coverages for medical,
hospital, surgical and funeral benefits sustained by the named
insured or other person as a result of bodily injury during the
commission of a burglary, robbery or theft by another; also
insurance against loss of or damage to moneys, coins, bullion,
securities, notes, drafts, acceptances or any other valuable
papers and documents resulting from any cause;
(4) Personal property floater insurance, which is insurance
upon personal effects against loss or damage from any cause;
(5) Glass insurance, which is insurance against loss or
damage to glass, including its lettering, ornamentation and
fittings;
(6) Boiler and machinery insurance, which is insurance
against any liability and loss or damage to property or interest
resulting from accidents to or explosion of boilers, pipes,
pressure containers, machinery or apparatus and to make inspection
of and issue certificates of inspection upon boilers, machinery
and apparatus of any kind, whether or not insured;
(7) Leakage and fire extinguishing equipment insurance,
which is insurance against loss or damage to any property or interest caused by the breakage or leakage of sprinklers, hoses,
pumps and other fire extinguishing equipment or apparatus, water
mains, pipes and containers, or by water entering through leaks
or openings in buildings, and insurance against loss or damage to
such sprinklers, hoses, pumps and other fire extinguishing
equipment or apparatus;
(8) Credit insurance, which is insurance against loss or
damage resulting from failure of debtors to pay their obligations
to the insured. Credit insurance shall include loss of income
insurance which is insurance against the failure of a debtor to
pay his or her monthly obligation due to involuntary loss of
employment. For the purpose of this definition, involuntary loss
of employment means the debtor loses employment income (salary or
wages) as a result of unemployment caused by individual or mass
layoff, general strikes, labor disputes, lockout or termination
by employer for other than willful or criminal misconduct; any or
all of the above-mentioned perils may be included in an insurance
policy, at the discretion of the policyholder;
(9) Malpractice insurance, which is insurance against legal
liability of the insured and against loss, damage or expense
incidental to a claim of such liability, and including medical,
hospital, surgical and funeral benefits to injured persons,
irrespective of legal liability of the insured arising out of the
death, injury or disablement of any person, or arising out of
damage to the economic interest of any person, as the result of
negligence in rendering expert, fiduciary or professional service;
(10) Entertainment insurance, which is insurance
indemnifying the producer of any motion picture, television,
radio, theatrical, sport, spectacle, entertainment or similar
production, event or exhibition against loss from interruption,
postponement or cancellation thereof due to death, accidental
injury or sickness of performers, participants, directors or other
principals;
(11) Mine subsidence insurance as provided for in article
thirty of this chapter;
(12) Miscellaneous insurance, which is insurance against any
other kind of loss, damage or liability properly a subject of
insurance and not within any other kind of insurance as defined
in this chapter, if such insurance is not disapproved by the
commissioner as being contrary to law or public policy; and
(13) Federal flood insurance, which is insurance provided by
the federal insurance administration or by private insurers
through the write your own program within the national flood
insurance program, instituted by the federal insurance
administration pursuant to the provision of 42 U. S. C. §4071, on
real or personal property of every kind and interest therein,
against loss or damage from flood or mudslide and against loss
consequential to such loss or damage, other than noncontractual
liability for any loss or damage.
(14) Workers' compensation insurance, which is insurance
providing all compensation and benefits required by chapter
twenty-three of this code.
(f) Surety. -- Surety insurance includes:
(1) Fidelity insurance, which is insurance guaranteeing the
fidelity of persons holding positions of public or private trust;
(2) Insurance guaranteeing the performance of contracts,
other than insurance policies, and guaranteeing and executing
bonds, undertakings and contracts of surety ship: Provided, That
surety insurance does not include the guaranteeing and executing
of bonds by professional bondsmen in criminal cases or by
individuals not in the business of becoming a surety for
compensation upon bonds;
(3) Insurance indemnifying banks, bankers, brokers,
financial or moneyed corporations or associations against loss,
resulting from any cause, of bills of exchange, notes, bonds,
securities, evidences of debt, deeds, mortgages, warehouse
receipts or other valuable papers, documents, money, precious
metals and articles made therefrom, jewelry, watches, necklaces,
bracelets, gems, precious and semiprecious stones, including any
loss while they are being transported in armored motor vehicles
or by messenger, but not including any other risks of
transportation or navigation, and also insurance against loss or
damage to such an insured's premises or to his furnishings,
fixtures, equipment, safes and vaults therein, caused by burglary,
robbery, theft, vandalism or malicious mischief, or any attempt
to commit such crimes; and
(4) Title insurance, which is insurance of owners of
property or others having an interest therein, or liens or encumbrances thereon, against loss by encumbrance, defective
title, invalidity or adverse claim to title.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-10. Rules and regulations.
(a) The commissioner is authorized to promulgate and adopt
such rules and regulations relating to insurance as are necessary
to discharge his or her duties and exercise his or her powers and
to effectuate the provisions of this chapter and to, protect and
safeguard the interests of policyholders and the public of this
state.
(b) The commissioner is authorized to promulgate rules
necessary to discharge his or her duties relating to workers'
compensation insurance as set forth in chapter twenty-three of
this code, which shall be exempt from the provisions of chapter
twenty-nine-a, article three of this code, except that these rules
shall be filed with the secretary of state's office.
(c) Prior to assuming regulatory authority over workers'
compensation insurance pursuant to article two-c, chapter twenty-
three of this code, the commissioner shall review and revise all
applicable rules to reflect the assumption of this new regulatory
authority: Provided, That all such revisions shall be exempt from
the provisions of chapter twenty-nine-a, article three, except
that the amended rules shall be filed with the secretary of
state's office.
§33-2-20. Authority of insurance commissioner to regulate
workers compensation industry; authority of insurance commissioner to administer chapter
twenty-three.
(a) Upon the termination of the workers' compensation
commission pursuant to chapter twenty-three of this code, the
powers and duties heretofore imposed upon the workers'
compensation commission as they relate to general administration
of the provisions of chapter twenty-three of this code are hereby
transferred to and imposed upon the insurance commissioner.
(b) Unless otherwise specified in chapter twenty-three, upon
termination of the workers' compensation commission, the duties
imposed upon the workers' compensation commission as they relate
to the award and payment of disability and death benefits and the
review of claims in articles four and five, chapter twenty-three
of this code, will be imposed upon the employers mutual insurance
company established pursuant to article two-c, chapter twenty-
three of this code, a private carrier offering workers'
compensation insurance in this state and self-insured employers.
Whenever reference is made to the workers' compensation
commissioner in those articles, the duty prescribed shall apply
to the employers mutual insurance company, a private carrier or
self-insured employer, as applicable.
(c) From the effective date of this enactment, the insurance
commissioner shall regulate all insurers licensed to transact
workers' compensation insurance in this state and all of the
provisions of this chapter shall apply to such insurers, unless
otherwise exempted by statute.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-2. Definitions.
As used in this article:
(1) "Benefits" mean money payments, goods, services or other
thing of value paid in response to a claim filed with an insurer
based upon a policy of insurance;
(2) "Business of insurance" means the writing of insurance,
including the writing of workers' compensation insurance under the
provisions of chapter twenty-three of this code, self-insurance
by an employer or employer group for workers' compensation risk
including the risk of catastrophic injuries under the provisions
of chapter twenty-three of this code or the reinsuring of risks
by an insurer, including acts necessary or incidental to writing
insurance or reinsuring risks and the activities of persons who
act as or are officers, directors, agents or employees of
insurers, or who are other persons authorized to act on their
behalf;
(3) "Claim" means an application or request for payment or
benefits provided under the terms of a policy of insurance;
(4) "Commissioner" means the insurance commissioner of West
Virginia or his or her designee;
(5) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified in,
this state or another state, to provide health care or
professional health care services, including, but not limited to,
a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, pharmacist, podiatrist,
chiropractor, physical therapist or psychologist;
(6) "Insurance" means a contract or arrangement in which a
person undertakes to:
(A) Pay or indemnify another person as to loss from certain
contingencies called "risks", including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit
to another person in connection with ascertainable risk
contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety; or
(E) Self-insurance for workers' compensation risk including
the risk of catastrophic injuries under the provisions of chapter
twenty-three of this code.
(7) "Insurer" means a person entering into arrangements or
contracts of insurance or reinsurance. Insurer includes, but is
not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire
companies, fraternal benefit society, reciprocal or interinsurance
exchange, nonprofit medical care corporation, nonprofit health
care corporation, nonprofit hospital service association,
nonprofit dental care corporation, health maintenance
organization, captive insurance company, risk retention group or
other insurer, regardless of the type of coverage written,
including the writing of workers' compensation insurance or self
insurance under the provisions of chapter twenty-three of this code, benefits provided or guarantees made by each. A person is
an insurer regardless of whether the person is acting in violation
of laws requiring a certificate of authority or regardless of
whether the person denies being an insurer;
(8) "Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock
company, a trust, trustees, an unincorporated organization, or any
similar business entity or any combination of the foregoing.
"Person" also includes hospital service corporations, medical
service corporations and dental service corporations as defined
in article twenty-four of this chapter, health care corporations
as defined in article twenty-five of this chapter, or a health
maintenance organization organized pursuant to article
twenty-five-a of this chapter;
(9) "Policy" means an individual or group policy, group
certificate, contract or arrangement of insurance or reinsurance,
coverage by a self-insured employer or employer group for its
workers' compensation risk including its risk of catastrophic
injuries or reinsurance, affecting the rights of a resident of
this state or bearing a reasonable relation to this state,
regardless of whether delivered or issued for delivery in this
state;
(10) "Reinsurance" means a contract, binder of coverage
(including placement slip) or arrangement under which an insurer
procures insurance for itself in another insurer as to all or part
of an insurance risk of the originating insurer;
(11) "Statement" means any written or oral representation
made to any person, insurer or authorized agency. A statement
includes, but is not limited to, any oral report or
representation; any insurance application, policy, notice or
statement; any proof of loss, bill of lading, receipt for payment,
invoice, account, estimate of property damages, or other evidence
of loss, injury or expense; any bill for services, diagnosis,
prescription, hospital or doctor record, X-ray, test result or
other evidence of treatment, services or expense; and any
application, report, actuarial study, rate request or other
document submitted or required to be submitted to any authorized
agency. A statement also includes any written or oral
representation recorded by electronic or other media; and
(12) "Unit" means the insurance fraud unit established
pursuant to the provisions of this article acting collectively or
by its duly authorized representatives.
ARTICLE 41. PRIVILEGES AND IMMUNITY.
§33-41-8. Creation of insurance fraud unit; purpose; duties;
personnel qualifications.
(a) There is established the West Virginia insurance fraud
unit within the office of the insurance commissioner of West
Virginia. The commissioner may employ full-time supervisory,
legal and investigative personnel for the unit, who shall be
qualified by training and experience in the areas of detection,
investigation or prosecution of fraud within and against the
insurance industry to perform the duties of their positions. The director of the fraud unit shall be a full-time position and shall
be appointed by the commissioner and serve at his or her will and
pleasure. The commissioner shall provide office space, equipment,
supplies, clerical and other staff that is necessary for the unit
to carry out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the
unit has cause to believe violations of the provisions of this
chapter or , the provisions of chapter twenty-three, the
provisions of article three, chapter sixty-one of this code
relating to the business of insurance have been or are being
committed;
(2) Review reports or complaints of alleged fraud related to
the business of insurance activities from federal, state and local
law-enforcement and regulatory agencies, persons engaged in the
business of insurance and the general public to determine whether
the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent
activity related to the business of insurance and undertake
independent studies to determine the extent of fraudulent
insurance acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of
this article and to employ legal counsel, investigators, auditors
and clerical support personnel and other personnel as the
commissioner determines necessary from time to time to accomplish the purposes of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts
in criminal matters;
(4) Share records and evidence with federal, state or local
law-enforcement or regulatory agencies, and enter into interagency
agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the
information the insurance fraud unit seeks to obtain is located
outside this state, the person from whom the information is sought
may make the information available to the insurance fraud unit to
examine at the place where the information is located. The
insurance fraud unit may designate representatives, including
officials of the state in which the matter is located, to inspect
the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from
officials of other states;
(7) The fraud unit may initiate investigations and
participate in the development of, and if necessary, the
prosecution of any health care provider, including a provider of
rehabilitation services, suspected of fraudulent activity related
to the business of insurance;
(8) Specific personnel, designated by the commissioner,
shall be permitted to operate vehicles owned or leased for the
state displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the commissioner may
carry firearms in the course of their official duties after
meeting specialized qualifications established by the governor's
committee on crime, delinquency and correction, which shall
include the successful completion of handgun training provided to
law-enforcement officers by the West Virginia state police:
Provided, That nothing in this subsection shall be construed to
include any person designated by the commissioner as a
law-enforcement officer as that term is defined by the provisions
of section one, article twenty-nine, chapter thirty of this code;
and
(10) The insurance fraud unit shall not be subject to the
provisions of article nine-a, chapter six of this code and the
investigations conducted by the insurance fraud unit and the
materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent
to defraud submits a materially false statement in support of a
claim for insurance benefits or payment pursuant to a policy of
insurance or who conspires to do so is guilty of a crime and is
subject to the penalties set forth in the provisions of this
section.
(b) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought exceeds
one thousand dollars in value is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than one nor more than ten years, fined not more than
ten thousand dollars, or both or in the discretion of the circuit
court confined in a county or regional jail for not more than one
year and so fined.
(c) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought is one
thousand dollars or less in value, is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in a county or regional
jail for not more than one year, fined not more than two thousand
five hundred dollars, or both.
(d) Any person convicted of a violation of this section is
subject to the restitution provisions of article eleven-a, chapter
sixty-one of this code.
(e) In addition to the foregoing provisions, the offenses
enumerated in sections twenty-four-e through twenty-four-h,
inclusive, article three, chapter sixty-one of this code are
applicable to matters concerning workers' compensation insurance.
(c) (f) The circuit court may award to the unit or other
law-enforcement agency investigating a violation of this section
or other criminal offense related to the business of insurance its
cost of investigation.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-24e. Omission to subscribe for workers' compensation
insurance; failure to file a premium tax report or
pay premium taxes; false testimony or statements;
failure to file reports; penalties; asset
forfeiture; venue.
(1) Failure to subscribe:
(A) Responsible person. Any person who individually or as
owner, partner, president, other officer, or manager of a sole
proprietorship, firm, partnership, company, corporation or
association, who, as a person who is responsible for and who is
required by specific assignment, duty or legal duty, which is
either expressed or inherent in laws which require the employer's
principals to be informed and to know the facts and laws affecting
the business organization and to make internal policy and
decisions which ensure that the individual and organization comply
with the general laws and provisions of chapter twenty-three of
this code, knowingly and willfully fails to subscribe to the
workers' compensation fund for and maintain workers' compensation
insurance shall be guilty of a felony and, upon conviction, shall
be imprisoned in a state correctional facility not less than one
nor more than ten years, or in the discretion of the court, be
confined in a county or regional jail not more than one year and
shall be fined not more than two thousand five hundred dollars.
(B) Any corporation, association or partnership who, as an
employer as defined in chapter twenty-three of this code,
knowingly and willfully fails to subscribe to the workers' compensation fund for and maintain workers' compensation insurance
shall be guilty of a felony and, upon conviction, shall be fined
not less than two thousand five hundred dollars nor more than ten
thousand dollars.
(2) Failure to pay:
(A) Any person who individually or as owner, partner,
president, other officer or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person as defined in this section, knowingly and
willfully fails to make premium tax payments to the workers'
compensation fund or premiums to a private carrier as required by
chapter twenty-three of this code, shall be guilty of the larceny
of the premium owed and, if the amount is one thousand dollars or
more, such person shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility not
less than one nor more than ten years or, in the discretion of the
court, be confined in a county or regional jail not more than one
year and shall be fined not more than two thousand five hundred
dollars. If the amount is less than one thousand dollars, such
person shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a term
not to exceed one year or fined an amount not to exceed two
thousand five hundred dollars, or both, in the discretion of the
court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this code, knowingly and willfully fails to make premium tax payments
to the workers' compensation fund or premiums to a private carrier
as required by chapter twenty-three of this code shall be guilty
of the larceny of the premium owed, and, if the amount is one
thousand dollars or more, such corporation, association, company
or partnership shall be guilty of a felony and, upon conviction
thereof, shall be fined not less than two thousand five hundred
dollars nor more than ten thousand dollars. If the amount is less
than one thousand dollars, such corporation, association, company
or partnership shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed two
thousand five hundred dollars.
(C) Any person who individually or as owner, partner,
president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person, as defined in this section, knowingly and
willfully and with fraudulent intent sells, transfers or otherwise
disposes of substantially all of the employer's assets for the
purpose of evading the payment of workers' compensation premium
taxes to the workers' compensation fund, or premiums to a private
carrier as required by chapter twenty-three of this code, shall
be guilty of the larceny of the premium owed and, if the amount
is one thousand dollars or more, such person shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility not less than one nor more than ten
years or, in the discretion of the court, be confined in a county or regional jail not more than one year and shall be fined not
more than two thousand five hundred dollars. If the amount is
less than one thousand dollars, such person shall be guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for a term not to exceed one year or fined
an amount not to exceed two thousand five hundred dollars, or
both, in the discretion of the court.
(D) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully and with fraudulent intent sells,
transfers or otherwise disposes of substantially all of the
employer's assets for the purpose of evading the payment of
workers' compensation premium taxes to the workers' compensation
fund, or premiums to a private carrier as required by chapter
twenty-three of this code shall be guilty of the larceny of the
premium owed, and, if the amount is one thousand dollars or more,
such corporation, association, company or partnership shall be
guilty of a felony and, upon conviction thereof, shall be fined
not less than two thousand five hundred dollars nor more than ten
thousand dollars. If the amount is less than one thousand
dollars, such corporation, association, company or partnership
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined an amount not to exceed two thousand five hundred
dollars.
(3) Failure to file premium tax reports:
(A) Any person who individually or as owner, partner, president, other officer, or manager of a sole proprietorship,
firm, partnership, company, corporation or association, who, as
a responsible person as defined in this section, knowingly and
willfully fails to file a premium tax report with the workers'
compensation fund or a premium report to a private carrier as
required by chapter twenty-three of this code, shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility not less than one nor more than ten
years, or in the discretion of the court, be confined in a county
or regional jail for a term not to exceed one year and shall be
fined not more than two thousand five hundred dollars.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to file a premium tax report
with the workers' compensation fund or a premium report to a
private carrier as required by chapter twenty-three of this code,
shall be guilty of a felony and, upon conviction thereof, shall
be fined not less than two thousand five hundred dollars nor more
than ten thousand dollars.
(4) Failure to file other reports:
(A) Any person, individually or as owner, partner, president
or other officer, or manager of a sole proprietorship, firm,
partnership, company, corporation or association who, as a
responsible person as defined in this section, knowingly and
willfully fails to file any report, other than a premium tax
report, required by such chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or
regional jail for a term not to exceed one year or fined an amount
not to exceed two thousand five hundred dollars, or both, in the
discretion of the court.
(B) Any corporation, association, company or partnership
which, as an employer as defined in chapter twenty-three of this
code, knowingly and willfully fails to file any report, other than
a premium tax report, with the workers' compensation fund or
insurance commissioner as required by chapter twenty-three of this
code, shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed two thousand five
hundred dollars.
(5) False testimony or statements:
Any person, individually or as owner, partner, president,
other officer, or manager of a sole proprietorship, firm,
partnership, company, corporation or association who, as a
responsible person as defined in this section, knowingly and
willfully makes a false report or statement under oath, affidavit,
certification or by any other means respecting any information
required to be provided under chapter twenty-three of this code
shall be guilty of a felony and, upon conviction thereof, shall
be confined in a state correctional facility for a definite term
of imprisonment which is not less than one year nor more than
three years or fined not less than one thousand dollars nor more
than ten thousand dollars, or both, in the discretion of the
court. In addition to any other penalty imposed, the court shall order any defendant convicted under this section to make full
restitution of all moneys paid by or due to the workers'
compensation fund, insurance commissioner or private carrier as
the result of a violation of this section. The restitution
ordered shall constitute a judgment against the defendant and in
favor of the state of West Virginia workers' compensation
commission, insurance commissioner or private carrier.
(6) Asset forfeiture:
(A) The court, in imposing sentence on a person or entity
convicted of an offense under this section, shall order the person
or entity to forfeit property, real or personal, that constitutes
or is derived, directly or indirectly, from gross proceeds
traceable to the commission, insurance commissioner or private
carrier of the offense. Any person or entity convicted under this
section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the
term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain,
inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention, forfeiture or of any other
necessary expenses incident to the seizure, detention, forfeiture,
or disposal of such property, including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of such properties in an effort to maximize the return from such properties; and
(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the
discretion of the workers' compensation fund to determine the
validity of any such lien or mortgage and the amount of payment
to be made, and the employment of attorneys and other personnel
skilled in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue:
Venue for prosecution of any violation of this section shall
be either the county in which the defendant's principal business
operations are located or in Kanawha County where the workers'
compensation fund is located.
§61-3-24f. Wrongfully seeking workers' compensation; false
testimony or statements; penalties; venue.
(1) Any person who shall knowingly and with fraudulent
intent secure or attempt to secure compensation from the workers'
compensation fund, a private carrier or from a self-insured employer:
(A) That is larger in amount than that to which he or she is
entitled; or
(B) That is longer in term than that to which he or she is
entitled; or
(C) To which he or she is not entitled, shall be guilty of
a larceny and, if the amount is one thousand dollars or more, such
person shall be guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than
one nor more than ten years or, in the discretion of the court,
be confined in a county or regional jail not more than one year
and shall be fined not more than two thousand five hundred
dollars. If the amount is less than one thousand dollars, such
person shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a term
not to exceed one year or fined an amount not to exceed two
thousand five hundred dollars, or both, in the discretion of the
court.
(2) Any person who shall knowingly and willfully make a
false report or statement under oath, affidavit, certification or
by any other means respecting any information required to be
provided under chapter twenty-three of this code shall be guilty
of a felony and, upon conviction thereof, shall be confined in a
state correctional facility for a definite term of imprisonment
which is not less than one year nor more than three years or fined
not less than one thousand dollars nor more than ten thousand dollars, or both, in the discretion of the court.
(3) In addition to any other penalty imposed, the court
shall order any person convicted under this section to make full
restitution of all moneys paid by the workers' compensation fund,
private carrier or self-insured employer as the result of a
violation of this section. The restitution ordered shall
constitute a judgment against the defendant and in favor of the
state of West Virginia workers' compensation commission, private
carrier or self-insured employer.
(4) If the person so convicted is receiving compensation
from such fund, private carrier or employer, he or she shall, from
and after such conviction, cease to receive such compensation as
a result of any alleged injury or disease.
Venue for prosecution of any violation of this section shall
either be the county in which the claimant resides, the county in
which the claimant is employed or working, or in Kanawha County
where the workers' compensation fund is located.
§61-3-24g. Workers' compensation health care offenses; fraud;
theft or embezzlement; false statements; penalties;
notice; prohibition against providing future
services; penalties; asset forfeiture; venue.
(1) Any person who knowingly and willfully executes, or
attempts to execute, a scheme or artifice:
(A) To defraud the workers' compensation fund, private
carrier or a self-insured employer in connection with the delivery
of or payment for workers' compensation health care benefits, items or services;
(B) To obtain, by means of false or fraudulent pretenses,
representations, or promises any of the money or property owned
by or under the custody or control of the workers' compensation
fund, private carrier or a self-insured employer in connection
with the delivery of or payment for workers' compensation health
care benefits, items or services; or
(C) To make any charge or charges against any injured
employee or any other person, firm or corporation which would
result in a total charge for the treatment or service rendered in
excess of the maximum amount set forth in the workers'
compensation commission's schedule of maximum reasonable amounts
to be paid for the treatment or services issued pursuant to
subsection (a), section three article four, chapter twenty-three
of this code is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than
one year nor more than ten years or, in the discretion of the
court, be confined in a county or regional jail not more than one
year and shall be fined not more than two thousand five hundred
dollars.
(2) Any person who, in any matter involving a health care
program related to the workers' compensation fund workers'
compensation insurance, knowingly and willfully:
(A) Falsifies, conceals or covers up by any trick, scheme or
device a material fact; or
(B) Makes any materially false, fictitious or fraudulent statement or representation, or makes or uses any materially false
writing or document knowing the same to contain any materially
false, fictitious or fraudulent statement or entry, is guilty of
a felony and, upon conviction thereof, shall be confined in a
state correctional facility for a definite term of imprisonment
which is not less than one year nor more than three years or fined
not less than one thousand dollars nor more than ten thousand
dollars, or both, in the discretion of the court.
(3) Any person who willfully embezzles, steals or otherwise
unlawfully converts to the use of any person other than the
rightful owner, or intentionally misapplies any of the moneys,
funds, securities, premiums, credits, property or other assets of
a health care program related to the workers' compensation fund
provision of workers' compensation insurance, is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility for not less than one year nor more
than ten years or fined not less than ten thousand dollars, or
both, in the discretion of the court.
(4) Any health care provider who fails, in violation of
subsection (5) of this section to post a notice, in the form
required by the workers' compensation commission, in the
provider's public waiting area that the provider cannot accept any
patient whose treatment or other services or supplies would
ordinarily be paid for from the workers' compensation fund,
private carrier or by a self-insured employer unless the patient
consents, in writing, prior to the provision of the treatment or other services or supplies, to make payment for that treatment or
other services or supplies himself or herself, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined one
thousand dollars.
(5) Any person convicted under the provisions of this section
shall, after such conviction, be barred from providing future
services or supplies to injured employees for the purposes of
workers' compensation and shall cease to receive payment for
services or supplies. In addition to any other penalty imposed,
the court shall order any defendant convicted under this section
to make full restitution of all moneys paid by or due to the
workers' compensation fund, private carrier or self-insured
employer as the result of a violation of this section. The
restitution ordered shall constitute a judgment against the
defendant and in favor of the state of West Virginia workers'
compensation commission, insurance commissioner, private carrier
or self-insured employer.
(6) (A) The court, in imposing sentence on a person convicted
of an offense under this section, shall order the person to
forfeit property, real or personal, that constitutes or is
derived, directly or indirectly, from gross proceeds traceable to
the commission of the offense. Any person convicted under this
section shall pay the costs of asset forfeiture.
(B) For purposes of subdivision (A) of this subsection, the
term "payment of the costs of asset forfeiture" means:
(i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain, advertise, sell or dispose of
property under seizure, detention or forfeiture, or of any other
necessary expenses incident to the seizure, detention, forfeiture
or disposal of the property, including payment for:
(I) Contract services;
(II) The employment of outside contractors to operate and
manage properties or provide other specialized services necessary
to dispose of the properties in an effort to maximize the return
from the properties; and
(III) Reimbursement of any state or local agency for any
expenditures made to perform the functions described in this
subparagraph;
(ii) The compromise and payment of valid liens and mortgages
against property that has been forfeited, subject to the
discretion of the workers' compensation fund to determine the
validity of the lien or mortgage and the amount of payment to be
made, and the employment of attorneys and other personnel skilled
in state real estate law as necessary;
(iii) Payment authorized in connection with remission or
mitigation procedures relating to property forfeited; and
(iv) The payment of state and local property taxes on
forfeited real property that accrued between the date of the
violation giving rise to the forfeiture and the date of the
forfeiture order.
(7) Venue for prosecution of any violation of this section
shall be either the county in which the defendant's principal business operations are located or in Kanawha County where the
workers' compensation fund is located.
§61-3-24h. Providing false documentation to workers'
compensation to the insurance commissioner or a
private carrier of workers' compensation
insurance; altering documents or certificates
from workers' compensation; penalties; venue.
(1) Any person, firm, partnership, company, corporation
association or medical provider who submits false documentation
to workers' compensation, the insurance commissioner or a private
carrier of workers' compensation insurance with the intent to
defraud the workers' compensation commission, the insurance
commissioner or a private carrier of workers' compensation
insurance shall be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for a term not to exceed one
year or fined an amount not to exceed two thousand five hundred
dollars, or both, in the discretion of the court.
(2) Any person, firm, partnership, company, corporation,
association or medical provider who alters, falsifies, defaces,
changes or modifies any certificate or other document which would
indicate good standing with the workers' compensation commission,
insurance commissioner or private carrier concerning workers'
compensation insurance coverage or endorsement by workers'
compensation for medical services shall be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for a term
not to exceed one year or fined an amount not to exceed two thousand five hundred dollars, or both, in the discretion of the
court.
(3) Venue for prosecution of any violation of this section
shall be either the county in which the claimant resides, a
defendant's principal business operations are located, or in
Kanawha County where the workers' compensation fund is located.;
And,
On pages one through twelve, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 1004--A Bill to amend and reenact
§4-11A-2 of the code of West Virginia, 1931, as amended; to amend
and reenact §11-9-2 of said code; to amend and reenact §11-10-3
of said code; to amend said code by adding thereto a new article,
designated §11-13V-1, §11-13V-2, §11-13V-3, §11-13V-4, §11-13V-5,
§11-13V-6, §11-13V-7, §11-13V-8, §11-13V-9, §11-13V-10,
§11-13V-11, §11-13V-12, §11-13V-13, §11-13V-14, §11-13V-15,
§11-13V-16 and §11-13V-17; to amend said code by adding thereto
a new section, designated §11-21-96; to amend and reenact §23-1-1,
§23-1-1a, §23-1-1b, §23-1-1c, §23-1-1e, §23-1-11, §23-1-13,
§23-1-14, §23-1-15, §23-1-17 and §23-1-19 of said code; to amend
said code by adding thereto a new section, designated §23-1-1g;
to amend and reenact §23-2-1, §23-2-1d, §23-2-2, §23-2-3, §23-2-4,
§23-2-5, §23-2-5a and §23-2-9 of said code; to amend and reenact
§23-2A-1 of said code; to amend said code by adding thereto a new
article, designated §23-2C-1, §23-2C-2, §23-2C-3, §23-2C-4,
§23-2C-5, §23-2C-6, §23-2C-7, §23-2C-8, §23-2C-9, §23-2C-10, §23-2C-11, §23-2C-12, §23-2C-13, §23-2C-14, §23-2C-15, §23-2C-16,
§23-2C-17, §23-2C-18, §23-2C-19, §23-2C-20, §23-2C-21, §23-2C-22
and §23-2C-23; to amend said code by adding thereto a new article,
designated §23-2D-1, §23-2D-2, §23-2D-3, §23-2D-4, §23-2D-5, §23-
2D-5a, §23-2D-6, §23-2D-7, §23-2D-8, §23-2D-9 and §23-2D-10; to
amend and reenact §23-3-1 and §23-3-4 of said code; to amend and
reenact §23-4-1b, §23-4-1c, §23-4-1d, §23-4-1e, §23-4-3, §23-4-3b,
§23-4-4, §23-4-6, §23-4-6a, §23-4-6b, §23-4-7, §23-4-7a, §23-4-7b,
§23-4-8, §23-4-8a, §23-4-8b, §23-4-8c, §23-4-9, §23-4-10,
§23-4-11, §23-4-12, §23-4-14, §23-4-15, §23-4-15a, §23-4-15b,
§23-4-16, §23-4-16a, §23-4-17, §23-4-20, §23-4-24 and §23-4-25 of
said code; to amend and reenact §23-4A-1 and §23-4A-4 of said
code; to amend said code by adding thereto a new section,
designated §23-4A-9; to amend said code by adding thereto a new
section, designated §23-4B-9; to amend and reenact §23-4C-5 of
said code; to amend said code by adding thereto a new section,
designated §23-4C-6; to amend and reenact §23-5-1, §23-5-2,
§23-5-3, §23-5-4, §23-5-5, §23-5-7, §23-5-8, §23-5-9, §23-5-10,
§23-5-11, §23-5-12 and §23-5-15 of said code; to amend and reenact
§29-22A-10 and §29-22A-10b of said code; to amend and reenact §33-
1-2 and §33-1-10 of said code; to amend and reenact §33-2-10 and
§33-2-20 of said code; to amend and reenact §33-41-2, §33-41-8 and
§33-41-11 of said code; and to amend and reenact §61-3-24e,
§61-3-24f, §61-3-24g and §61-3-24h of said code, all relating to
workers' compensation generally; reducing the unfunded liability
of the workers' compensation fund; providing existing and new revenue sources therefore including new and existing taxes;
providing for dissolution of workers' compensation commission;
converting state agency to employer-owned mutual insurance
company; providing for private carriers to offer workers'
compensation insurance; providing for employees of the commission
to be exempt from provisions of civil service coverage; providing
for transfer of fraud investigation and prosecution unit and
assets necessary for its operation; providing for transfer of
certain workers' compensation commission functions, rights,
responsibilities, employees and assets, to the insurance
commissioner and the industrial council; providing certain civil
remedies to commission, mutual company and private carriers;
providing for exemption from required coverage for certain
employers who cover their employees under federal Longshore and
Harbor Workers' Compensation Act; providing for payment periods
to be other than quarterly; providing authority to enjoin
employers from engaging in business when in default; requiring
self-insured employers to obtain insurance for catastrophic risks;
providing for transfer of authority over certain funds to the
insurance commissioner; providing for statutory subrogation of
medical and indemnity benefits; providing for expedited appeals
to the office of judges; authorizing negotiation for subrogation
claims; providing for capital and surplus requirements of
employers' mutual insurance company; providing for election of a
board of directors of employers' mutual insurance company;
providing for establishment of claims index to assist insurers; providing for establishment and administration of certain funds
and accounts in state treasury; providing for adverse risk
assignment plan; providing, upon meeting of certain criteria, for
issuance of proclamation by the governor; providing for
preferential placement of any employee laid off after transfer of
functions; providing certain retraining and other benefits;
providing for novation of policies to new employers mutual
insurance company; providing for requirements of a basic policy
of workers' compensation insurance; providing for setting of
industrial insurance rates; providing for collection of premiums;
providing for transfer of occupational pneumoconiosis board;
providing for limitation of liability for insurers providing
workers' compensation insurance and third-party administrators;
providing for transfer of rules to be applicable to the industrial
insurance market; providing for transfer of certain assets to new
mutual insurance company; providing for termination of
interdisciplinary examining board and health care advisory panel;
providing for selection of occupational pneumoconiosis board
members by governor; providing for transfer of authority over
occupational pneumoconiosis board; providing for negotiation of
final settlement in workers' compensation claims; providing terms
of employment for chief administrative law judge; making technical
corrections throughout; providing internal effective dates;
providing for civil administrative and criminal penalties; and
making conforming changes throughout.
On motion of Senator Kessler, the following amendments to the House of Delegates amendments to the bill (Eng. S. B. No. 1004)
were reported by the Clerk, considered simultaneously, and
adopted:
On page one hundred seventy-one, section twenty-one, line
fifteen, after the word "fines" by inserting the words "or
remedies";
And,
On page one hundred seventy-one, section twenty-one, line
seventeen, after the word "exclusive" by inserting the word
"civil".
On motion of Senator Chafin, the Senate concurred in the
House of Delegates amendments, as amended.
The Clerk announced that the following notice of pairs on the
passage of the bill was on his desk:
Senator Facemyer--Yea.Senator Weeks--Nay.
Engrossed Senate Bill No. 1004, as amended, was then put upon
its passage.
Pending discussion,
The question being "Shall Engrossed Senate Bill No. 1004
pass?"
Prior to the call of the roll, Senator Helmick moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Bailey, Boley,
Caruth, Chafin, Dempsey, Edgell, Foster, Guills, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr.
President)--25.
The nays were: Barnes, Deem, Harrison and Sprouse--4.
Absent: Bowman and Fanning--2.
Excused from voting: Helmick--1.
Paired: Facemyer (For), Weeks (Against)--2.
So, a majority of all the members elected to the Senate
having voted in the affirmative, the President declared the bill
(Eng. S. B. No. 1004) passed with its House of Delegates amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Caruth,
Chafin, Dempsey, Edgell, Foster, Guills, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr.
President)--25.
The nays were: Barnes, Deem, Harrison and Sprouse--4.
Absent: Bowman, Facemyer, Fanning and Weeks--4.
Excused from voting: Helmick--1.
So, two thirds of all the members elected to the Senate
having voted in the affirmative, the President declared the bill
(Eng. S. B. No. 1004) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Deem, and by unanimous
consent, the remarks by Senators Deem, Weeks, Caruth, Plymale and Chafin as to the passage of Engrossed Senate Bill No. 1004 were
ordered printed in the Appendix to the Journal.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to the House
of Delegates amendments to, and the passage as amended, to take
effect from passage, of
Eng. Senate Bill No. 1002, Relating to reorganization of
executive branch of state government.
A message from The Clerk of the House of Delegates announced
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended, with its
Senate amended title, to take effect July 1, 2005, of
Eng. Com. Sub. for Senate Bill No. 1003, Relating generally
to ethical standards of governmental officials and employees.
A message from The Clerk of the House of Delegates announced
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended, with its
Senate amended title, to take effect from passage, of
Eng. Senate Bill No. 1004, Relating generally to workers'
compensation.
Senator Chafin offered the following pre-adjournment
resolution:
Senate Resolution No. 103--Raising a committee to notify the
House of Delegates the Senate is ready to adjourn sine die.
Resolved by the Senate:
That the President be authorized to appoint a committee of three to notify the House of Delegates that the Senate has
completed its labors and is ready to adjourn sine die.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senator Tomblin (Mr. President), under the provisions of the
foregoing resolution, appointed the following committee to notify
the House of Delegates of impending Senate adjournment:
Senators Foster, Jenkins and McKenzie.
Subsequently, Senator Foster reported that the duties
assigned by Senate Resolution No. 103 had been performed.
Thereafter, a three-member delegation from the House of
Delegates, namely
Delegates Susman, Mahan and Sumner, announced that that body
also had completed its labors and was ready to adjourn sine die.
Senator Chafin then offered the following resolution:
Senate Resolution No. 104-Raising a committee to notify His
Excellency, the Governor, that the Legislature is ready to adjourn
sine die.
Resolved by the Senate:
That the President be authorized to appoint a committee of
three to join with a similar committee of the House of Delegates
to notify His Excellency, the Governor, that the Legislature has
completed its labors and is ready to adjourn sine die.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Under the provisions of the foregoing resolution, Senator
Tomblin (Mr. President) appointed the following committee to
notify His Excellency, the Governor, that the Senate was ready to
adjourn:
Senators Sharpe, Minard and Sprouse.
The President next acknowledged another delegation from the
House of Delegates, consisting of
Delegates Perry, Pino and Sobonya, who announced that they
had been appointed by that body to join with a similar committee
named by the Senate to wait upon His Excellency and were ready to
proceed with this assignment.
Senators Sharpe, Minard and Sprouse, comprising the Senate
committee, then joined the House committee and proceeded to the
executive offices to notify His Excellency, the Governor, of
imminent adjournment of this extraordinary session of the
Legislature.
Subsequently, Senator Sharpe, from the joint select committee
to notify His Excellency, the Governor, that the Legislature had
completed the business of this extraordinary session and was ready
to adjourn sine die, returned to the chamber and was recognized
by the President. Senator Sharpe then reported this mission
accomplished.
At the request of Senator White, unanimous consent being
granted, the Joint Committee on Enrolled Bills was granted
permission, after it has examined, found truly enrolled and presented to His Excellency, the Governor, for his action, bills
passed but not presented to him prior to adjournment of this first
extraordinary session of the seventy-seventh Legislature in the
year two thousand five, to file its reports with the Clerk and
that the same be included in the Journal of the last day of the
session; and also, that any communications from His Excellency,
the Governor, as to his action on bills after adjournment of the
session, be included in the Journal.
In accordance with the foregoing unanimous consent agreement,
the following report of the Joint Committee on Enrolled Bills was
filed as follows:
Senator White, 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 7th day of February, 2005, presented
to His Excellency, the Governor, for his action, the following
bills, signed by the President of the Senate and the Speaker of
the House of Delegates:
(S. B. No. 1001), Authorizing excess contribution received by
inaugural committees be expended to Governor's Mansion.
(S. B. No. 1002), Relating to reorganization of executive
branch of state government.
(Com. Sub. for S. B. No. 1003), Relating generally to ethical
standards of governmental officials and employees.
And,
(S. B. No. 1004), Relating generally to workers' compensation.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
Richard Browning,
Chair, House Committee.
Executive Communications
Under authorization of Senate approval therefor in prior
proceedings today, to include in this day's Journal communications
showing the Governor's action on enrolled bills presented to him
in post-session reports, the following are inserted hereinafter:
The Clerk then presented communications from His Excellency,
the Governor, advising that on February 10, 2005, he had approved
Enr. Committee Substitute for Senate Bill No. 1003; on February
14, 2005, he had approved Enr. Senate Bill No. 1001 and Enr.
Senate Bill No. 1002; and on February 16, 2005, he had approved
Enr. Senate Bill No. 1004.
On motion of Senator Chafin, the first extraordinary session
of the Senate in the year two thousand five adjourned sine die.
________