WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

FIRST EXTRAORDINARY SESSION, 2005

SIXTH DAY

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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.
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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.
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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