(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2005
SIXTIETH DAY
____________
Charleston, W. Va., Saturday, April 9, 2005
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Right Reverend W. Michie Klusmeyer,
Bishop, Episcopal Diocese of West Virginia, Charleston, West
Virginia.
Pending the reading of the Journal of Friday, April 8, 2005,
On motion of Senator Edgell, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
On motion of Senator Love, the special order of business set
for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business
following an anticipated recess.
The Clerk presented a communication from the Department of Health and Human Resources, submitting its Sudden Infant Death
Syndrome Program quarterly report, in accordance with chapter
sixteen, article one, section six of the code of West Virginia.
Which communication and report were received and filed with
the Clerk.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar, Engrossed House Bill No. 2780,
Engrossed Committee Substitute for House Bill No. 2911 and
Engrossed House Bill No. 3216.
Senator Chafin also announced that in the same meeting, the
Committee on Rules had returned to the Senate Calendar, on third
reading, Engrossed Committee Substitute for House Bill No. 2890;
and on second reading, Engrossed House Bill No. 2329, Engrossed
Committee Substitute for House Bill No. 2369, Engrossed Committee
Substitute for House Bill No. 2456, Engrossed Committee Substitute
for House Bill No. 2877, Engrossed House Bill No. 2963, Engrossed
House Bill No. 2989, Engrossed House Bill No. 3308 and Engrossed
House Bill No. 3340, under rule number seventeen of the Rules of
the Senate.
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, passage 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. Com. Sub. for Senate Bill No. 94, Providing additional
flexibility for school instructional support and enhancement days.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §18-5-45 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.
(a) As used in this section, the following terms have the
following meanings:
(1) "Instructional day" means a day within the instructional
term which meets the following criteria:
(A) Instruction is offered to students for at least the
minimum amounts of time provided by State Board rule;
(B) Instructional time is used for instruction, cocurricular
activities and approved extracurricular activities and, pursuant to the provisions of subdivision (12), subsection (b), section five,
article five-a of this chapter, faculty senates; and
(C) Such other criteria as the State Board determines
appropriate.
(2) "Bank time" "Accrued instructional time" means
instructional time accruing during the instructional term from time
added to the instructional day beyond the time required by State
Board rule for an instructional day. Accrued instructional time
may which may be accumulated and used in larger blocks of time
during the school year for instructional or noninstructional
activities as further defined by the State Board.
(3) "Extracurricular activities" are activities under the
supervision of the school such as athletics, noninstructional
assemblies, social programs, entertainment and other similar
activities as further defined by the State Board.
(4) "Cocurricular activities" are activities that are closely
related to identifiable academic programs or areas of study that
serve to complement academic curricula as further defined by the
State Board.
(b) Findings. -
(1) The primary purpose of the school system is to provide
instruction for students.
(2) The school calendar, as defined in this section, is designed to define the school term both for employees and for
instruction.
(3) The school calendar traditionally has provided for one
hundred eighty actual days of instruction but numerous
circumstances have combined to cause the actual number of
instructional days to be less than one hundred eighty.
(4) The quality and amount of instruction offered during the
instructional term is affected by the extracurricular and
cocurricular activities allowed to occur during scheduled
instructional time.
(5) Within reasonable guidelines, the school calendar should
be designed at least to guarantee that one hundred eighty actual
days of instruction are possible.
(c) The county board shall provide a school term for its
schools that contains the following:
(1) An employment term for teachers of no less than two
hundred days, exclusive of Saturdays and Sundays; and
(2) Within the employment term, an instructional term for
students of no less than one hundred eighty separate instructional
days.
(d) The instructional term for students shall include one
instructional day in each of the months of October, December,
February, April and June which is an instructional support and enhancement day scheduled by the board to include both
instructional activities for students and professional activities
for teachers to improve student instruction. Instructional support
and enhancement days are subject to the following provisions:
(1) Two hours of the instructional support and enhancement day
shall be used for instructional activities for students. The
instructional activities for students are subject to the following
provisions:
(A) The instructional activities for students require the
direct supervision or involvement by teachers;
(B) The instructional activities for students shall be limited
to two hours;
(C) The instructional activities for students shall be
determined and scheduled at the local school level;
(D) The instructional activities for students may include, but
are not limited to, both in-school and outside of school activities
such as student mentoring, tutoring, counseling, student research
and other projects or activities of an instructional nature,
community service, career exploration, parent and teacher
conferences, visits to the homes of students, college and financial
aid workshops and college visits; The instructional activities for
students shall be determined and scheduled at the local school
level. The first two hours of the instructional day shall be used for instructional activities for students which require the direct
supervision or involvement by teachers, and such activities shall
be limited to two hours.
(E) To ensure that the students who attend are properly
supervised, the instructional activities for students shall be
arranged by appointment with the individual school through the
principal, a teacher or other professional personnel at the school;
and
(F) The Each school shall establish a policy relating to the
use of the two-hour block scheduled for instructional activities
for students;
(2) The professional activities for teachers shall include a
two-hour block of time immediately following the first two hours of
instructional activities for students during which the faculty
senate shall have the opportunity to meet. The instructional
support and enhancement day shall include a two-hour block of time
for professional activities for teachers during which the faculty
senate shall have the opportunity to meet;
(3) Any time not used by the faculty senate and the remainder
of the school day, All time remaining in the school day after
meeting the requirements of subdivisions (1) and (2) of this
subsection, not including the duty-free lunch period, shall be used
for other professional activities for teachers to improve student instruction which may include, but are not limited to, professional
staff development, curriculum team meetings, individualized
education plan meetings and other meetings between teachers,
principals, aides and paraprofessionals to improve student
instruction as determined and scheduled at the local school level;
(4) Notwithstanding any other provision of law or policy to
the contrary, the presence of any specific number of students in
attendance at the school for any specific period of time shall not
be required on instructional support and enhancement days and the
transportation of students to the school shall not be required;
(5) Instructional support and enhancement days are also a
scheduled work day for all service personnel and shall be used for
training or other tasks related to their job classification if
their normal duties are not required; and
(6) Nothing in this section may be construed to require that
the instructional activities for students, faculty senate meetings
and other professional activities for teachers be scheduled in any
certain order.
(e) The instructional term shall commence no earlier than the
twenty-sixth day of August and terminate no later than the eighth
day of June.
(f) Noninstructional days shall total twenty and shall be
comprised of the following:
(1) Seven holidays as specified in section two, article five,
chapter eighteen-a of this code;
(2) Election day as specified in section two, article five,
chapter eighteen-a of this code;
(3) Six days to be designated by the county board to be used
by the employees outside the school environment; and
(4) Six days to be designated by the county board for any of
the following purposes:
(A) Curriculum development;
(B) Preparation for opening and closing school;
(C) Professional development;
(D) Teacher-pupil-parent conferences;
(E) Professional meetings; and
(F) Making up days when instruction was scheduled but not
conducted.
(g) Three of the days described in subdivision (4), subsection
(f) of this section shall be scheduled prior to the twenty-sixth
day of August for the purposes of preparing for the opening of
school and staff development.
(h) At least one of the days described in subdivision (4),
subsection (f) of this section shall be scheduled after the eighth
day of June for the purpose of preparing for the closing of school.
If one hundred eighty separate instruction days occur prior to the eighth day of June, this day may be scheduled on or before the
eighth day of June.
(i) At least four of the days described in subdivision (3),
subsection (f) of this section shall be scheduled after the first
day of March.
(j) At least two of the days described in subdivision (4),
subsection (f) of this section will be scheduled for professional
development. The professional development conducted on these days
will be consistent with the goals established by the state board
pursuant to the provisions of section twenty-three-a, article two
of this chapter.
(k) Subject to the provisions of subsection (h) of this
section, all noninstructional days will be scheduled prior to the
eighth day of June.
(l) Except as otherwise provided in this subsection, the The
State Board may not schedule the primary statewide assessment
program prior to the fifteenth day of May of the instructional year
unless the State Board determines that the nature of the test
mandates an earlier testing date. For the school year beginning
two thousand three only, the state board may not schedule the
primary statewide assessment program prior to the fifteenth day of
April of the instructional year.
(m) If, on or after the first day of March, the county board determines that it is not possible to complete one hundred eighty
separate days of instruction, the county board shall schedule
instruction on any available noninstructional day, regardless of
the purpose for which the day originally was scheduled, and the day
will be used for instruction, subject to the following:
(1) Provided, That The noninstructional days scheduled for
professional development shall be the last available
noninstructional days to be rescheduled as instructional days;
(2) Provided, however, That On or after the first day of
March, the county board also may require additional minutes of
instruction in the school day to make up for lost instructional
days in excess of the days available through rescheduling and, if
in its judgment it is reasonable and necessary to improve student
performance, to avoid scheduling instruction on noninstructional
days previously scheduled for professional development; and
(3) The provisions of this subsection do not apply to: (1)
Holidays; and (2) election day.
(n) The following applies to bank accrued instructional time:
(1) Except as provided in subsection (m) of this section, bank
accrued instructional time may not be used to avoid one hundred
eighty separate days of instruction;
(2) Bank Accrued instructional time may not be used to
lengthen the time provided in law for faculty senates;
(3) The use of bank accrued instructional time for
extracurricular activities will be limited by the state board; and
(4) Accrued instructional time may be used by schools and
counties to provide additional time for professional staff
development and continuing education as may be needed to improve
student performance and meet the requirements of the federal
mandates affecting elementary and secondary education. The amount
of accrued instructional time used for this purpose may not exceed
three instructional days; and
(4) Such (5) Other requirements or restrictions as the State
Board may provide in the rule required to be promulgated by this
section.
(o) The following applies to cocurricular activities:
(1) The State Board shall determine what activities may be
considered cocurricular;
(2) The State Board shall determine the amount of
instructional time that may be consumed by cocurricular activities;
and
(3) Such Other requirements or restrictions as the State Board
may provide in the rule required to be promulgated by this section.
(p) The following applies to extracurricular activities:
(1) Except as provided by subdivision (3) of this subsection,
extracurricular activities may not be scheduled during instructional time;
(2) The use of bank accrued instructional time for
extracurricular activities will be limited by the State Board; and
(3) The State Board shall provide for the attendance by
students of certain activities sanctioned by the Secondary schools
School Activities Commission when those activities are related to
statewide tournaments or playoffs or are programs required for
Secondary schools School Activities Commission approval.
(q) Noninstructional interruptions to the instructional day
shall be minimized to allow the classroom teacher to teach.
(r) Nothing in this section prohibits establishing year-round
schools in accordance with rules to be established by the State
Board.
(s) Prior to implementing the school calendar, the county
board shall secure approval of its proposed calendar from the State
Board or, if so designated by the State Board, from the State
Superintendent.
(t) The county board may contract with all or part of the
personnel for a longer term.
(u) The minimum instructional term may be decreased by order
of the state superintendent in any county declared a federal
disaster area and where the event causing the declaration is
substantially related to a reduction of instructional days.
(v) Where the employment term overlaps a teacher's or service
personnel's participation in a summer institute or institution of
higher education for the purpose of advancement or professional
growth, the teacher or service personnel may substitute, with the
approval of the county superintendent, the participation for up to
five of the noninstructional days of the employment term.
(w) The State Board shall promulgate a rule in accordance with
the provisions of article three-b, chapter twenty-nine-a of this
code for the purpose of implementing the provisions of this
section.;
And,
On page one, by striking out the title and inserting in lieu
thereof a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 94--A Bill to amend and
reenact §18-5-45 of the Code of West Virginia, 1931, as amended,
relating to the school calendar; defining terms; correcting
references; providing additional flexibility for instructional
support and enhancement days; and authorizing limited use of
accrued instructional time for professional development and
continuing education for certain purposes.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 94, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 94) passed with its House of Delegates
amended title.
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. Com. Sub. for Com. Sub. for Senate Bill No. 191, Relating
to implementation of modified mental hygiene procedures.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for
certain medication dependent persons with prior
hospitalizations or convictions; to institute modified mental
hygiene procedures; procedures; forms.
(a) The Supreme Court of Appeals shall, in consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers, implement in
at least four and no more than six judicial circuits, beginning on
the first day of July, two thousand six, modified mental hygiene
procedures that are consistent with the requirements set forth in
this section. The judicial circuits selected for implementing the
modified procedures shall be circuits in which the Supreme Court of
Appeals determines, after consultation with the Secretary of the
Department of Health and Human Resources and local mental health
consumers and service providers, that adequate resources will be
available to implement the modified procedures. The Secretary of
the Department of Health and Human Resources, after consultation with the Supreme Court of Appeals and local mental health services
consumers and service providers, shall prescribe appropriate forms
to implement the modified procedures and shall annually prepare a
report on the use of the modified procedures and transmit the
report to the Legislature on or before the last day of each
calendar year. The Supreme Court of Appeals may, after
consultation with the Secretary of the Department of Health and
Human Resources and local mental health services consumers and
providers during the pilot program period, further modify any
specific modified procedures that are implemented: Provided, That
the modified procedures must be consistent with the requirements of
this chapter and this section. If the Secretary of the Department
of Health and Human Resources determines that the use of any
modified procedure in one or more judicial circuits is placing an
unacceptable additional burden upon state mental health resources,
the Supreme Court of Appeals shall, in consultation with the
Secretary, modify the procedures used in such a fashion as will
address the concerns of the Secretary, consistent with the
requirements of this chapter. The provisions of this section and
the modified procedures thereby authorized shall cease to have any
force and effect on the thirtieth day of June, two thousand ten,
unless extended by an Act of the Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a verified petition seeking a treatment compliance order may be filed
by any person alleging:
(A) That an individual, on two or more occasions within a
twenty-four month period prior to the filing of the petition, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that the individual has been
convicted of one or more crimes of violence against the person
within a 24-month period prior to the filing of the petition, and
the individual's failure to take prescribed medication or follow
another prescribed regimen to treat a mental illness was a
significant aggravating or contributing factor in the circumstances
surrounding the crime;
(B) That the individual?s previous hospitalizations due to
mental illness or the individual's crime of violence occurred after
or as a result of the individual?s failure to take medication or
other treatment as prescribed by a physician to treat the
individual?s mental illness; and
(C) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or follow other regimen or treatment as prescribed
is likely to lead to further instances in the reasonably near
future in which the individual becomes likely to cause serious harm or commit a crime of violence against the person.
(2) Upon the filing of a petition seeking a treatment
compliance order and the petition?s review by a circuit judge or
mental hygiene commissioner, counsel shall be appointed for the
individual if the individual does not already have counsel and a
copy of the petition and all supporting evidence shall be furnished
to the individual and their counsel. If the circuit judge or
mental hygiene commissioner determines on the basis of the petition
that it is necessary to protect the individual or to secure their
examination, a detention order may be entered ordering that the
individual be taken into custody and examined by a psychiatrist or
licensed psychologist. A hearing on the allegations in the
petition, which may be combined with a hearing on a probable cause
petition conducted pursuant to the provisions of section two of
this article or a final commitment hearing conducted pursuant to
the provisions of section four of this article, shall be held
before a circuit judge or mental hygiene commissioner. If the
individual is taken into custody and remains in custody as a result
of a detention order, the hearing shall be held within forty-eight
hours of the time that the individual is taken into custody.
(3) If the allegations in the petition seeking a treatment
compliance order are proved by the evidence adduced at the hearing,
which must include expert testimony by a psychiatrist or licensed psychologist, the circuit judge or mental hygiene commissioner may
enter a treatment compliance order for a period not to exceed six
months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month
period prior to the filing of the petition an individual, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that on at least one occasion within
a twenty-four month period prior to the filing of the petition, has
been convicted of a crime of violence against any person;
(C) That the individual's previous hospitalizations due to
mental illness occurred as a result of the individual's failure to
take prescribed medication or follow a regimen or course of
treatment as prescribed by a physician or psychiatrist to treat the
individual's mental illness; or that the individual has been
convicted for crimes of violence against any person, and the
individual's failure to take medication or follow a prescribed
regimen or course of treatment of the individual's mental illness
was a significant aggravating or contributing factor in the
commission of the crime;
(D) That a psychiatrist or licensed psychologist who has
personally examined the individual within the preceding twenty-four
months has issued a written opinion that the individual, without the aid of the medication or other prescribed treatment, is likely
to cause serious harm to himself or herself or to others;
(E) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or other treatment as prescribed is likely to lead
to further instances in the reasonably near future in which the
individual becomes likely to cause serious harm or commit a crime
of violence against any person;
(F) That, where necessary, a responsible entity or individual
is available to assist and monitor the individual's compliance with
an order requiring the individual to take the medication or follow
other prescribed regimen or course of treatment;
(G) That the individual can obtain and take the prescribed
medication or follow other prescribed regimen or course of
treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to
assess the individual within forty-eight hours of the entry of the
treatment compliance order.
(4) The order may require an individual to take medication and
treatment as prescribed and if appropriate to attend scheduled
medication and treatment-related appointments: Provided, That a
treatment compliance order shall be subject to termination or modification by a circuit judge or mental hygiene commissioner if
a petition is filed seeking termination or modification of the
order and it is shown in a hearing on the petition that there has
been a material change in the circumstances that led to the entry
of the original order that justifies the order?s modification or
termination: Provided, however, That a treatment compliance order
may be extended by a circuit judge or mental hygiene commissioner
for additional periods of time not to exceed six months, upon the
filing of a petition seeking an extension and after a hearing on
the petition or upon the agreement of the individual.
(5) (A) After the entry of a treatment compliance order in
accordance with the provisions of subdivisions (3) and (4) of
subsection (b) of this section, if a verified petition is filed
alleging that an individual has not complied with the terms of a
medication and treatment compliance order and if a circuit judge or
mental hygiene commissioner determines from the petition and any
supporting evidence that there is probable cause to believe that
the allegations in the petition are true, counsel shall be
appointed for the individual and a copy of the petition and all
supporting evidence shall be furnished to the individual and his or
her counsel. If the circuit judge or mental hygiene commissioner
considers it necessary to protect the individual or to secure his
or her examination, a detention order may be entered to require that the individual be examined by a psychiatrist or psychologist.
A hearing on the allegations in the petition, which may be combined
with a hearing on a probable cause petition conducted pursuant to
section two of this article or a final commitment hearing conducted
pursuant to section four of this article, shall be held before a
circuit judge or mental hygiene commissioner. If the individual is
taken and remains in custody as a result of a detention order, the
hearing shall be held within forty-eight hours of the time that the
individual is taken into custody.
(B) At a hearing on any petition filed pursuant to the
provisions of paragraph (A), subdivision (5), subsection (b) of
this section, the circuit judge or mental hygiene commissioner
shall determine whether the individual has complied with the terms
of the medication and treatment compliance order. If the
individual has complied with the order, the petition shall be
dismissed: Provided, That if the evidence presented to the circuit
judge or mental hygiene commissioner shows that the individual has
complied with the terms of the existing order, but the individual's
prescribed medication, dosage or course of treatment needs to be
modified, then the newly modified medication and treatment
prescribed by a psychiatrist who personally examined the individual
may be properly incorporated into a modified order. If the order
has not been complied with, the circuit judge or mental hygiene commissioner, after inquiring into the reasons for noncompliance
and whether any aspects of the order should be modified, may
continue the individual upon the terms of the original order and
direct the individual to comply with the order or may modify the
order in light of the evidence presented at the hearing. If the
evidence shows that the individual at the time of the hearing is
likely to cause serious harm to himself, herself or others as a
result of the individual?s mental illness, the circuit judge or
mental hygiene commissioner may convert the proceeding into a
probable cause proceeding and enter a probable cause order
directing the involuntary admission of the individual to a mental
health facility for examination and treatment: Provided, That all
applicable due process and hearing requirements of contained in
section two and section three of this article have been fully
satisfied.
(c) (1) The modified procedures may authorize that upon the
certification of a qualified mental health professional, as
described in subdivision (2) of this subsection, that there is
probable cause to believe that an individual who has been
hospitalized two or more times in the previous twenty-four months
because of mental illness is likely to cause serious harm to
himself, herself or to others as a result of the mental illness if
not immediately restrained, and that the best interests of the individual would be served by immediate hospitalization, a circuit
judge, mental hygiene commissioner, or designated magistrate may
enter a temporary probable cause order directing the involuntary
hospitalization of the individual at a mental health facility for
immediate examination and treatment.
(2) The modified procedures may authorize the chief judge of
a judicial circuit, or circuit judge if there is no chief judge, to
enter orders authorizing specific psychiatrists or licensed
psychologists, whose qualifications and training have been reviewed
and approved by the Supreme Court of Appeals, to issue
certifications that authorize and direct the involuntary admission
of an individual subject to the provisions of this section on a
temporary probable cause basis to a mental health facility for
examination and treatment: Provided, That the authorized
psychiatrist or licensed psychologist must conclude and certify
based on personal observation prior to certification that the
individual is mentally ill and, because of such mental illness is
imminently likely to cause serious harm to himself or herself or to
others if not immediately restrained, and promotion of the best
interests of the individual requires immediate hospitalization.
Immediately upon certification, the psychiatrist or licensed
psychologist shall provide notice of the certification to a circuit
judge, mental hygiene commissioner or designated magistrate in the county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary
probable cause determination issued pursuant to the provisions of
this section shall continue in effect for more than forty-eight
hours without the filing of a petition for involuntary
hospitalization and the occurrence of a probable cause hearing
before a circuit judge, mental hygiene commissioner or designated
magistrate. If at any time the chief medical officer of the mental
health facility to which the individual is admitted determines that
the individual is not likely to cause serious harm as a result of
mental illness, the chief medical officer shall discharge the
individual and immediately forward a copy of the individual?s
discharge to the circuit judge, mental hygiene commissioner or
designated magistrate.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 191--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §27-5-11, relating to mental
hygiene proceedings generally; authorizing implementation of a
modified mental hygiene procedure in limited number of counties
relating to persons who are medication-dependent and who have had at least one prior conviction for a crime of violence against the
person within the previous twenty-four months related to mental
illness or two prior hospitalizations within the previous twenty-
four months due to mental illness; directing cooperation of
Secretary of Department of Health and Human Resources and Supreme
Court of Appeals in developing modified procedures; authorizing use
of treatment compliance orders in certain judicial circuits;
authorization for hospitalization and treatment for up to forty-
eight hours prior to probable cause hearing for medication-
dependent individuals who meet requirements; reporting
requirements; expiration date; time limits; requirements of
petitions; procedures; required findings; hearings; and forms
required for procedures.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 191, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 191) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 191) takes effect from
passage.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 236, Requiring health care facilities
train staff, employees and contractors on Alzheimer's disease and
related dementia.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §16-5R-6, to read as
follows:
ARTICLE 5R. THE ALZHEIMER'S SPECIAL CARE STANDARDS ACT.
§16-5R-6. Alzheimer's and dementia care training; rules.
(a) For the purposes of this section, "resident" means an
individual receiving care or services in an adult day care
facility, nursing home, assisted living facility or residential
care community.
(b) The Secretary shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-nine-s of this code, setting minimum standards for Alzheimer's and
dementia care training of all staff, employees and contractors that
come in regular and direct contact with residents.
(c) The standards established in this section shall apply to
adult day care facilities, nursing homes, assisted living
facilities and residential care communities who provide services
under the supervision of a licensed operator.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 236--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §16-5R-6, relating to the Alzheimer's Special Care
Standards Act; and establishing training requirements for
employees, staff and contractors in certain health facilities on
the subject of Alzheimer's disease.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 236, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 236) passed with its House of Delegates amended title.
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 concurrence by that body in the passage of
Eng. Senate Bill No. 278, Relating to lists of stockholders of
banking institutions and bank holding companies.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 282, Continuing School Building
Authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page one, section eighteen, by striking out everything
after the section caption and inserting in lieu thereof the
following:
Pursuant to the provisions of article ten, chapter four of
this code, the School Building Authority shall continue to exist
until the first day of July, two thousand seven, unless sooner
terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 282, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham,
Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Harrison and Weeks--2.
Absent: None.
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. 282) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Harrison and Weeks--2.
Absent: None.
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. 282) takes effect July 1, 2005.
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, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 283, Continuing Health Care Authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, section twenty-eight, by striking out everything
after the section caption and inserting in lieu thereof the
following:
Pursuant to the provisions of article ten, chapter four of
this code, the Health Care Authority shall continue to exist until
the first day of July, two thousand eight, unless sooner
terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 283, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 283) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 283) takes effect July 1, 2005.
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, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 285, Continuing Division of Culture and
History.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, section one-b, by striking out everything after
the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of
this code, the Division of Culture and History shall continue to
exist until the first day of July, two thousand seven, unless
sooner terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 285, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 285) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 285) takes effect July 1, 2005.
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, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 286, Continuing Public Defender Services.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, section three-a, by striking out everything after
the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of
this code, Public Defender Services shall continue to exist until
the first day of July, two thousand eight, unless sooner
terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 286, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 286) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 286) takes effect July 1, 2005.
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 concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 341, Authorizing Department
of Health and Human Resources promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 353, Authorizing Department
of Transportation promulgate legislative rules.
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. Com. Sub. for Senate Bill No. 382, Authorizing Department
of Administration promulgate legislative rules.
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 four, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §64-1-1 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that article 2, chapter 64 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a
of the code of West Virginia, the Legislature expressly authorizes
the promulgation of the rules described in articles two through
eleven, inclusive, of this chapter, subject only to the limitations
set forth with respect to each such rule in the section or sections
of this chapter authorizing its promulgation. Legislative rules
promulgated pursuant to the provisions of articles one through
eleven, inclusive, of this chapter in effect at the effective date of this section shall continue in full force and effect until
reauthorized in this chapter by legislative enactment or until
amended by emergency rule pursuant to the provisions of article
three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO
PROMULGATE LEGISLATIVE RULES.
§64-2-1. Department of Administration.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of August, two thousand four, under the
authority of section forty-two, article three, chapter five-a of
this code modified by the Department of Administration to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixteenth day of November, two
thousand four, relating to the Department of Administration
(leasing space on behalf of state spending units, 148 CSR 2) is
authorized, with the following amendment:
On page seven, by striking out all of subsection 12.6.
(b) The legislative rule filed in the State Register on the
twenty-seventh day of August, two thousand four, under the
authority of section forty-eight, article three, chapter five-a of
this code relating to the Department of Administration (state owned
vehicles, 148 CSR 3) is authorized.
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board (general
provisions, 162 CSR 1) is authorized, with the following amendment:
On page three, subdivision 6.2.1., lines sixteen and
seventeen, by striking out the words "Accrued Retirement Benefit"
and inserting in lieu thereof the words "vested accrued retirement
benefit";
On page three, paragraph 6.2.1.1., by striking out the
paragraph in its entirety and inserting in lieu thereof the
following:
6.2.1.1. "Vested accrued retirement benefit' means the benefit
due to the member as of the date specified by the parties in the
Qualified Domestic Relations Order set out in subdivision 6.2.2. of
this rule.;
On page three, subdivision 6.2.3., line nine, by striking out
the words "Accrued Retirement Benefit" and inserting in lieu
thereof the words "vested accrued retirement benefit";
On page three, subdivision 6.2.4., line nine, by striking out the words "Accrued Retirement Benefit" and inserting in lieu
thereof the words "vested accrued retirement benefit";
On page four, paragraph 6.2.5.3., lines three and four, by
striking out the words "Accrued Retirement Benefit" and inserting
in lieu thereof the words "vested accrued retirement benefit";
And,
On page four, subdivision 6.2.8., line six, by striking out
the words "Moreover, no qualified domestic relations order will be
honored by the board while a loan under the above two sections is
outstanding" and inserting in lieu thereof the words "Provided,
That, a member may borrow from that portion of his or her
individual account not subject to the qualified domestic relations
order".
(b) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board (deputy
sheriff retirement system, 162 CSR 10) is authorized, with the
following amendment:
On page six, by striking out section fourteen in its entirety, and redesignating the remaining sections and their components
accordingly.
(c) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board (benefit
determination and appeal, 162 CSR 2) is authorized.
(d) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board
(teachers' defined contribution system, 162 CSR 3) is authorized,
with the following amendment:
On page one, subsection 3.1, line four, after the words
"different meaning" by inserting a new subdivision to read as
follows: "3.1.1. 'Accrued benefit' is the amount credited to the
member's annuity account.", and by redesignating the remaining subdivisions accordingly;
On page three, subsection 4.1, line thirteen, following the
words "fifteen (15) days of the end of the pay period.", by
striking out the remainder of the subsection;
On page three, subsection 4.2, twenty-one, following the words
"fifteen (15) days of the end of the pay period.", by striking out
the remainder of the subsection;
And,
On page eight, subsection 7.5, line fourteen, after the words
"default fund for distribution to the member", by inserting the
words "or beneficiary".
(e) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board
(teachers' defined benefit plan, 162 CSR 4) is authorized, with the
following amendment:
On page seven, by striking out section 10 in its entirety.
(f) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority of section one, article ten-d, chapter five of this code modified
by the Consolidated Public Retirement Board to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the seventeenth day of November, two thousand
four, relating to the Consolidated Public Retirement Board (public
employees retirement system, 162 CSR 5) is authorized with the
following amendment:
On page three, by striking out section 10 in its entirety and
redesignating the remaining sections and their components
accordingly.
(g) The legislative rule filed in the State Register on the
twenty-fourth day of August, two thousand four, under the authority
of section one, article ten-d, chapter five of this code relating
to the Consolidated Public Retirement Board (West Virginia State
Police disability determination and appeal process, 162 CSR 9) is
authorized.
§64-2-3. West Virginia Ethics Commission.
The legislative rule filed in the State Register on the
twenty-sixth day of August, two thousand four, under the authority
of section five-a, article two, chapter six-b of this code modified
by the Ethics Commission to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on
the sixteenth day of February, two thousand five, relating to the Ethics Commission (code of conduct for administrative law judges,
158 CSR 13) is authorized, with the following amendment:
On pages eleven and twelve, by striking out paragraph 4.7.a.2.
in its entirety and inserting in lieu thereof the following:
"4.7.a.2. Personally solicit funds for a political
organization or political candidate; Provided, That, the provisions
of this paragraph do not apply to part-time state administrative
law judges.
4.7.a.3. Be compelled to pay an assessment to a political
organization or candidate or purchase tickets for political dinners
or other similar functions."
§64-2-4. Division of Information Service and Communications.
The legislative rule filed in the State Register on the
twenty-seventh day of August, two thousand four, under the
authority of section four-a, article seven, chapter five-a of this
code modified by the Division of Information Services and
Communications to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the State Register on the
thirteenth day of January, two thousand five, relating to the
Division of Information Services and Communications
(telecommunications payments by spending units, 161 CSR 2) is
authorized, with the following amendment:
On page one, section 2, subsection (g.), after the word "IS&C", by inserting the words "or 'the Division'";
On page two, section 2, subsection "(k.) 'Shared Account'",
after the words "in §5A-7-4a", by striking "(l)" and inserting in
lieu thereof "(k)";
On page two, section 2, by striking all of subsection (l.) and
inserting in lieu thereof the following:
"2.l5. 'Spending Unit' means a department, agency or
institution of the state government for which an appropriation is
requested, or to which an appropriation is made by the Legislature:
Provided, That spending unit does not include the Legislature or
the judiciary.";
On page three, section 3, following the words "spending
units", by striking out the remainder of the section and inserting
in lieu thereof "that have their telecommunications services billed
on the state's shared account.";
On page three, section 4, subsection(b.), line 12, by striking
out the words "to ensure the legitimacy of the charges.";
On page three, section 4, by striking out subdivision (g.) in
its entirety and relettering the remaining subdivision;
On page three, section 5, by striking out the words "IS&C will
insure all of its duties and rights are executed as defined below
after the first billing period. This allows IS&C to implement the
new policies and allow for transition by all parties (vendors, spending units, etc.)";
On page three, by striking out subdivisions 5.1.2. and 5.1.3.
in their entirety and renumbering the remaining subdivision;
On page four, section 5.1.4., following the word "Charges" by
striking out the words "not rejected during this preliminary review
by IS&C";
On page five, section 6, by striking out the words "Any
spending unit that is utilizing the services and pricing of a
telecommunications provider via a state-issued contract must agree
to have its charges included in the shared account and all requests
for telecommunications services must be obtained by submitting to
IS&C a Telecommunications Change Request form for approval.";
On page eight, section 8, line 3, after the word "via" by
striking out the words "a state-issued contract" and inserting in
lieu thereof the words "via a shared account";
On page eight, by striking out subsection 8.1 in its entirety;
And,
On page eight, section 8, by striking out the words "8.2
Invoices submitted for payment.
8.2.1. Vendors are required to submit all invoices to IS&C
that include more than one spending unit. If vendors are providing
services to spending units governed by the pricing included in the
applicable state-issued contract then the charges for these services must be included on the shared account."
§64-2-5. Division of Personnel.
(a) The legislative rule filed in the State Register on the
twenty-seventh day of August, two thousand four, under the
authority of section ten, article six, chapter twenty-nine of this
code modified by the Division of Personnel to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the twenty-third day of November, two thousand
four, relating to the Division of Personnel (Administration, 143
CSR 1) is authorized.
(b) The legislative rule filed in the State Register on the
twenty-seventh day of August, two thousand four, under the
authority of section ten, article six, chapter twenty-nine of this
code modified by the Division of Personnel to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the twentieth day of January, two thousand five,
relating to the Division of Personnel (preemployment reference and
inquiries, 143 CSR 4) is authorized, with the following amendment:
"On page one, subsection 1.1., by striking out the word
'eligibility' and inserting in lieu thereof the word 'rejection';
On page one, subsection 2.1., line one, after the word
'employment' by striking out the word 'with' and inserting in lieu
thereof the words 'in the classified service of';
On page one, subsection 2.1., line two, by striking out the
semi-colon and inserting a comma, and by striking out the word
'includes' and inserting in lieu thereof the word 'including';
On page one, subsection 2.2., line two, after the word
'service.', by striking out the remainder of the subsection;
On page one, by striking out subsection 2.6. in its entirety
and inserting in lieu thereof the following:
'2.5. Disqualifying event: Conviction of a crime of an
infamous crime or other crime involving moral turpitude which has
a reasonable connection to the position/class for which the
applicant or employee is applying. For purposes of this rule, a
plea of "guilty" or "no contest" is considered a conviction unless
the charge was subsequently invalidated by a court decision.';
On page one, subsection 2.5., by striking out the entire
subsection and inserting in lieu thereof the following:
'2.6. Director: The Director of the Division of Personnel or
his or her designee.';
On page two, subsection 2.11., by striking out the words
'actions by the individual that would cause', and, after the word
'damage', by inserting the words 'or injury';
On page two, subsection 2.12., line one, after the word 'to'
by inserting the words 'a classified service position in';
On page two, by striking out section 3 in its entirety and renumbering the succeeding sections accordingly;
On page two, section 4, by striking out the words 'the
Director shall prescribe information required to be submitted by
applicants, including fingerprints and driver's license number,
that is needed by the State Police and other entities for
processing or as is otherwise necessary to facilitate access to
information.';
On pages two and three, by striking out the subsections 4.1.
and 4.2. in their entirety, and inserting in lieu thereof the
following:
'4.1. To establish the eligibility of an applicant or
employee, the Director may verify information provided by the
applicant, including, but not limited to:
a. Current and previous employment and/or volunteer and/or
student activities;
b. Military service;
c. Formal education; and
d. Professional licensure and/or certification.
4.2. To the extent permitted by law and reasonably relevant to
established eligibility standards or the nature of the position
sought by the applicant, the Director may obtain and review:
a. The applicant's state and/or federal criminal records
history;
b. The central abuse registry established pursuant to W. Va.
Code § 15-2C-1 et seq.; and
c. The applicant's driving records.
4.3. To the extent permitted by law, the Director may require
an applicant to provide any information necessary to afford the
Director access to records reasonably relevant to established
eligibility standards or the nature of the position sought by the
applicant.
4.4. The Director shall conduct investigations and/or secure
reports necessary to assess the suitability of an applicant. The
Director may delegate some or all of the responsibility to
qualified appointing authorities in accordance with the provisions
of this rule.'
On page three, subsection 4.3, by renumbering the subsection
as subsection '4.5.';
On page three, section 5, by striking out the entire section
and renumbering the succeeding sections accordingly;
On page four, subsection 7.1., after the words 'separate
file', by striking out the remainder of the subsection;
On page four, subsection 7.2., after the word 'all', by
striking out the words 'required and requested' and, after the word
'reports', by inserting the words 'requested by the Division of
Personnel pursuant to this rule;
On page four, subsection 8.1., line one, by striking out the
words 'shall be' and inserting in lieu thereof the word 'is';
On page four, subsection 8.1, lines three and four, after the
word 'report', by striking out the word 'the' and inserting in lieu
thereof the word 'a', and by striking out the word 'limit' and
inserting in lieu thereof the word 'provided';
On page four, subsection 8.2., by striking out the words 'that
is needed' and inserting in lieu thereof the word 'required', and
by striking out the words 'as is otherwise necessary';
On page four, subsection 9.1., line two, after the words
'employee to a' by inserting the words 'classified service';
And,
On page four, by striking out section 10 in its entirety."
§64-2-6. Board of Risk and Insurance Management.
(a) The legislative rule filed in the State Register on the
twenty-sixth day of August, two thousand four, under the authority
of section five, article twelve, chapter twenty-nine of this code
modified by the Board of Risk and Insurance Management to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twentieth day of January, two
thousand five, relating to the Board of Risk and Insurance
Management (public entities insurance program, 115 CSR 2) is
authorized.
(b) The legislative rule filed in the State Register on the
twenty-sixth day of August, two thousand four, under the authority
of section five, article twelve, chapter twenty-nine of this code
modified by the Board of Risk and Insurance Management to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixteenth day of February, two
thousand five, relating to the Board of Risk and Insurance
Management (patient injury compensation fund, 115 CSR 7) is
authorized.;
And,
On pages one through four, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 382--A Bill to amend and
reenact §64-1-1 of the code of West Virginia, 1931, as amended; and
to amend and reenact article 2, chapter 64 of said code, all
relating generally to the promulgation of administrative rules by
the various executive or administrative agencies and the procedures
relating thereto; legislative mandate or authorization for the
promulgation of certain legislative rules by various executive or
administrative agencies of the state; authorizing certain of the
agencies to promulgate certain legislative rules in the form that
the rules were filed in the State Register; authorizing certain of
the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-
Making Review Committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee and as
amended by the Legislature; authorizing Department of
Administration to promulgate a legislative rule relating to leasing
space on behalf of state spending units; authorizing Department of
Administration to promulgate a legislative rule relating to state-
owned vehicles; authorizing Consolidated Public Retirement Board to
promulgate a legislative rule relating to general provisions;
authorizing Consolidated Public Retirement Board to promulgate a
legislative rule relating to Deputy Sheriff Retirement System;
authorizing Consolidated Public Retirement Board to promulgate a
legislative rule relating to benefit determination and appeal;
authorizing Consolidated Public Retirement Board to promulgate a
legislative rule relating to the Teachers Defined Contribution
System; authorizing Consolidated Public Retirement Board to
promulgate a legislative rule relating to the Teachers Defined
Benefit Plan; authorizing Consolidated Public Retirement Board to
promulgate a legislative rule relating to the Public Employees
Retirement System; authorizing Consolidated Public Retirement Board to promulgate a legislative rule relating to West Virginia State
Police disability determination and appeal process; authorizing
Ethics Commission to promulgate a legislative rule relating to code
of conduct for administrative law judges; authorizing Division of
Information Services and Communications to promulgate a legislative
rule relating to telecommunications payments by spending units;
authorizing Division of Personnel to promulgate a legislative rule
relating to administration of the Division; authorizing Division of
Personnel to promulgate a legislative rule relating to
preemployment references and inquiries; authorizing Board of Risk
and Insurance Management to promulgate a legislative rule relating
to the Public Entities Insurance Program; and authorizing Board of
Risk and Insurance Management to promulgate a legislative rule
relating to the Patient Injury Compensation Fund.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 382, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 382) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 382) takes effect from passage.
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 concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 386, Authorizing Department
of Military Affairs and Public Safety promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 427, Relating to health
maintenance organizations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page four, section three-a, line thirty-four, by striking
out the word "A" and inserting in lieu thereof the words "For
health maintenance organizations that have been operating in this
state for at least three years, a".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 427, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 427) passed with its title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 435, Creating method
municipal courts can recover certain uncollectible fines.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and
costs or failure to appear in court.
(a) If costs, fines, forfeitures or penalties imposed by the
municipal court upon conviction of a person for a criminal offense
as defined in section three-c, article three, chapter seventeen-b
of this code are not paid in full within one hundred eighty days of
the judgment, the municipal court clerk or, upon a judgment
rendered on appeal, the circuit clerk shall notify the Division of
Motor Vehicles of such the failure to pay: Provided, That at the
time the judgment is imposed, the judge shall provide the person
with written notice that failure to pay the same as ordered may
result in the withholding of any income tax refund due the licensee
and shall result in the suspension of such the person's license or
privilege to operate a motor vehicle in this state and that such
the suspension could result in the cancellation of, the failure to
renew or the failure to issue an automobile insurance policy
providing coverage for such the person or such the person's family:
Provided, however, That the failure of the judge to provide such
notice shall does not affect the validity of any suspension of such
the person's license or privilege to operate a motor vehicle in
this state. For purposes of this section, payment shall be stayed during any period an appeal from the conviction which resulted in
the imposition of such costs, fines, forfeitures or penalties is
pending.
Upon such notice, the Division of Motor Vehicles shall suspend
the person's driver's license or privilege to operate a motor
vehicle in this state until such time that the costs, fines,
forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the
contrary, the notice of the failure to pay such costs, fines,
forfeitures or penalties shall may not be given where the municipal
court, upon application of the person upon whom the same costs,
fines, forfeitures or penalties were imposed filed prior to the
expiration of the period within which the same these are required
to be paid, enters an order finding that such the person is
financially unable to pay all or a portion of the same costs,
fines, forfeitures or penalties: Provided, That where the
municipal court, upon finding that the person is financially unable
to pay a portion thereof of the costs, fines, forfeitures or
penalties, requires the person to pay the remaining portion,
thereof the municipal court shall notify the Division of Motor
Vehicles of such the person's failure to pay the same if the same
is if not paid within the period of time ordered by such the court.
(c) If a person charged with a criminal offense fails to appear or otherwise respond in court, the municipal court clerk
shall notify the Division of Motor Vehicles thereof within fifteen
days of the scheduled date to appear unless such the person sooner
appears or otherwise responds in court to the satisfaction of the
judge. Upon such notice, the Division of Motor Vehicles shall
suspend the person's driver's license or privilege to operate a
motor vehicle in this state until such time that the person appears
as required.
(d) On and after the first day of July, two thousand eight, if
the licensee fails to respond to the Division of Motor Vehicles
order of suspension within ninety days of receipt of the certified
letter, the municipal court of original jurisdiction shall notify
the Tax Commissioner that the licensee has failed to pay the costs,
fines, forfeitures or penalties assessed by the court or has failed
to respond to the citation. The notice provided by the municipal
court to the Tax Commissioner must include the licensee's social
security number. The Tax Commissioner, or his or her designee,
shall withhold from any personal income tax refund due and owing to
a licensee, the costs, fines, forfeitures or penalties due to the
municipality, the Tax Commissioner's administration fee for the
withholding and any and all fees that the municipal court would
have collected had the licensee appeared: Provided, That the Tax
Commissioner's administration fee may not exceed twenty-five dollars: Provided, however, That the Tax Commissioner may change
this maximum amount limitation for this fee for fiscal years
beginning on or after the first day of July, two thousand eight, by
legislative rule promulgated in accordance with the provisions of
article three, chapter twenty-nine-a of this code: Provided
further, That the administrative fees deducted shall be deposited
in the special revolving fund hereby created in the state treasury,
which shall be designated as the "municipal fines and fees
collection fund", and the Tax Commissioner shall make such
expenditures from the fund as he or she deems appropriate for the
administration of this subsection. After deduction of the Tax
Commissioner's administration fee, the Tax Commissioner shall remit
to the municipality all remaining amounts withheld pursuant to this
section and the municipal court shall distribute applicable costs,
fines, forfeitures or penalties owed to the municipality, the
Regional Jail Authority Fund, the Crime Victims Compensation Fund,
the Community Corrections Fund, the Governor's subcommittee on law-
enforcement training or any other fund or payee that may be
applicable. After the costs, fines, forfeitures or penalties are
withheld, the Tax Commissioner shall refund any remaining balance
due the licensee. If the refund is not sufficient to cover all the
costs, fines, forfeitures or penalties being withheld pursuant to
this section, the Tax Commissioner's administration fee shall be retained by the Tax Commissioner, and the remaining money withheld
shall be remitted by the Tax Commissioner to the municipality. The
municipality shall then allocate the money so remitted to the
municipality in the following manner: (1) Any costs, fines,
forfeitures or penalties due to the municipality; (2) seventy-five
percent of the remaining balance shall be paid to the appropriate
Regional Jail Authority Fund; (3) fifteen percent of the remaining
balance shall be paid to the Crime Victims Compensation Fund; (4)
six percent of the remaining balance shall be paid into the
Community Corrections Fund; and (5) the final four percent shall be
paid to the Governor's subcommittee on law-enforcement training.
When the costs, fines, forfeitures or penalties exceed the
licensee's income tax refund, the Tax Commissioner shall withhold
the remaining balance in subsequent years until such time as the
costs, fines, forfeitures or penalties owed are paid in full. The
Tax Commissioner shall remit the moneys that he or she collects to
the appropriate municipality no later than the first day of July of
each year. If the municipal court or the municipality subsequently
determines that any such costs, fines, forfeitures or penalties
were erroneously imposed, the municipality shall promptly notify
the Tax Commissioner. If the refunds have not been withheld and
remitted, the Tax Commissioner may not withhold and remit payment
to the municipality and shall so inform the municipality. If the refunds have already been withheld and remitted to the
municipality, the Tax Commissioner shall so inform the
municipality. In either event, all refunds for erroneously imposed
costs, fines, forfeitures or penalties shall be made by the
municipality and not by the Tax Commissioner.
(e) Rules and effective date. -- The Tax Commissioner may
promulgate such rules as may be useful or necessary to carry out
the purpose of this section and to implement the intent of the
Legislature, to be effective on the first day of July, two thousand
eight. Rules shall be promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
(f) On or before the first day of July, two thousand five, the
municipal court may elect to reissue notice as provided in
subsections (a) and (c) of this section to the Division of Motor
Vehicles for persons who remain noncompliant: Provided, That the
person was convicted or failed to appear on or after the first day
of January, one thousand nine hundred ninety-three. If the
original notification cannot be located, the Division of Motor
Vehicles shall accept an additional or duplicate notice from the
municipal court clerk.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or penalties imposed as the result of criminal conviction or for
failure to appear in court.
(a) The Division shall suspend the license of any resident of
this state or the privilege of a nonresident to drive a motor
vehicle in this state upon receiving notice from a circuit court,
magistrate court or municipal court of this state, pursuant to
section two-b, article three, chapter fifty of this code or section
two-b, article ten, chapter eight of said code or section
seventeen, article four, chapter sixty-two of said code, that such
person has defaulted on the payment of costs, fines, forfeitures,
penalties or restitution imposed on the person by the circuit
court, magistrate court or municipal court upon conviction for any
criminal offense by the date such court had required such person to
pay the same, or that such person has failed to appear in court
when charged with such an offense. For the purposes of this
section; section two-b, article three, chapter fifty of said code;
section two-b, article ten, chapter eight of said code; and section
seventeen, article four, chapter sixty-two of said code, "criminal
offense" shall be defined as any violation of the provisions of
this code, or the violation of any municipal ordinance, for which
the violation thereof may result in a fine, confinement in jail or
imprisonment in the penitentiary a correctional facility of this
state: Provided, That any parking violation or other violation for which a citation may be issued to an unattended vehicle shall not
be considered a criminal offense for the purposes of this section;
section two-b, article ten, chapter eight of said code; section
two-b, article three, chapter fifty of said code; or section
seventeen, article four, chapter sixty-two of said code.
(b) A copy of the order of suspension shall be forwarded to
such person by certified mail, return receipt requested. No order
of suspension becomes effective until ten days after receipt of a
copy of such order. The order of suspension shall advise the
person that because of the receipt of notice of the failure to pay
costs, fines, forfeitures or penalties, or the failure to appear,
a presumption exists that the person named in the order of
suspension is the same person named in the notice. The
Commissioner may grant an administrative hearing which
substantially complies with the requirements of the provisions of
section two, article five-a, chapter seventeen-c of this code upon
a preliminary showing that a possibility exists that the person
named in the notice of conviction is not the same person whose
license is being suspended. Such request for hearing shall be made
within ten days after receipt of a copy of the order of suspension.
The sole purpose of this hearing shall be for the person requesting
the hearing to present evidence that he or she is not the person
named in the notice. In the event the Commissioner grants an administrative hearing, the Commissioner shall stay the license
suspension pending the Commissioner's order resulting from the
hearing.
(c) A suspension under this section and section three-a of
this chapter will continue until the person provides proof of
compliance from the municipal, magistrate or circuit court and pays
the reinstatement fee as provided in section nine of this article.
The reinstatement fee is assessed upon issuance of the order of
suspension regardless of the effective date of suspension.
§17B-3-9. Surrender and return of license not required.
The Division, upon suspending or revoking a license, shall may
not require that the license be surrendered to and be retained by
the Division. The surrender of a license shall may not be a
precondition to the commencement and tolling of any applicable
period of suspension or revocation: Provided, That before the
license may be reinstated, the licensee shall pay a fee of fifteen
fifty dollars, in addition to all other fees and charges, which
shall be collected by the Division and deposited in a special
revolving fund to be appropriated to the Division for use in the
enforcement of the provisions of this section. Provided, however,
That when any license is suspended for failure to maintain motor
vehicle liability insurance the reinstatement fee is fifty dollars;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 435--A Bill to amend and
reenact §8-10-2b of the Code of West Virginia, 1931, as amended;
and to amend and reenact §17B-3-3c and §17B-3-9 of said code, all
relating to consequences of not paying fines and fees; requiring
notice of possibility of withholding of income tax refund under
certain circumstances; providing that Tax Commissioner may withhold
income tax refund under certain circumstances; providing for
distribution of income tax refund withheld; providing Tax
Commissioner's administrative fee; providing Tax Commissioner
authority to promulgate rules; authorizing reissuance of notice by
municipal court under certain circumstances; providing for
continuance of driver's license suspension under certain
circumstances; creating fund for administrative fee and providing
for expenditures from the fund; providing for consequences of
erroneous imposition of fines or fees; and increasing fees.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 435, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 435) passed with its House of Delegates
amended title.
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, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 452, Continuing Board of Risk and
Insurance Management.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section twelve, by striking out everything after the section caption and inserting in lieu thereof the following:
Pursuant to the provisions of article ten, chapter four of
this code, the state Board of Risk and Insurance Management shall
continue to exist until the first day of July, two thousand six,
unless sooner terminated, continued or reestablished.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 452, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 452) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 452) takes effect July 1, 2005.
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, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 455, Relating to financing
of environmental control activities by certain electrical
utilities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-4e. Environmental control bonds.
(a) Legislative findings. -- The Legislature hereby finds and
declares: (i) That electric utilities in the state face the need
to install and construct emission control equipment at existing
generating facilities in the state in order to meet the
requirements of existing and anticipated environmental laws and
regulations and otherwise to reduce emissions from those electric
generating facilities; (ii) that the capital costs associated with
the installation and construction of emission control equipment are
considerable; (iii) that the financial condition of some electric
utilities may make the use of traditional utility financing
mechanisms to finance the construction and installation of emission
control equipment difficult or impossible and that this situation
may cause such utilities to defer the installation of emission
control equipment, to incur higher financing costs, to minimize or
eliminate their use of high-sulfur coal mined in the State or to
use other financing alternatives that are less favorable to the
state and its citizens; (iv) that the construction and installation
of emission control equipment by utilities will create public
health and economic benefits to the state and its citizens, including, without limitation, emissions reductions, economic
development, job growth and retention, and the increased use of
high-sulfur coal mined in the State; (v) that customers of electric
utilities in the state have an interest in the construction and
installation of emission control equipment at electric generating
facilities in the state at a lower cost than would be afforded by
traditional utility financing mechanisms; (vi) that alternative
financing mechanisms exist which can result in lower costs to
customers and the use of these mechanisms can ensure that only
those costs associated with the construction and installation of
emission control equipment at electric generating facilities
located in the state that generate electric energy for their
ultimate use will be included in customer rates; and (vii) that in
order to use such alternative financing mechanisms, the Commission
must be empowered to adopt a financing order that advances these
goals. The Legislature, therefore, finds that it is in the
interest of the state and its citizens to encourage and facilitate
the use of alternative financing mechanisms that will enable
certain utilities to finance the construction and installation of
emission control equipment at electric generating facilities in the
state under certain conditions and to empower the Commission to
review and approve alternative financing mechanisms as being
consistent with the public interest, as set forth in this section.
(b) Definitions. --
As used in this section:
(1) "Adjustment mechanism" means a formula-based mechanism for
making any adjustments to the amount of the environmental control
charges that are necessary to correct for any over-collection or
under-collection of the environmental control charges or otherwise
to ensure the timely and complete payment and recovery of
environmental control costs and financing costs. The adjustment
mechanism is not to be used as a means to authorize the issuance of
environmental control bonds in a principal amount greater, or the
payment or recovery of environmental control costs in an amount
greater, than that which was authorized in the financing order
which established the adjustment mechanism.
(2) "Ancillary agreement" means any bond insurance policy,
letter of credit, reserve account, surety bond, swap arrangement,
hedging arrangement, liquidity or credit support arrangement, or
other similar agreement or arrangement entered into in connection
with the issuance of environmental control bonds that is designed
to promote the credit quality and marketability of the bonds or to
mitigate the risk of an increase in interest rates.
(3) "Assignee" means any person or legal entity to which an
interest in environmental control property is sold, assigned,
transferred or conveyed (other than as security) and any successor to or subsequent assignee of such a person or legal entity.
(4) "Bondholder" means any holder or owner of an environmental
control bond.
(5) "Environmental control activity" means any of the
following:
(A) The construction, installation and placing in operation of
environmental control equipment at a qualifying generating
facility.
(B) The shutdown or retirement of any existing plant,
facility, unit or other property at a qualifying generating
facility to reduce, control or eliminate environmental emissions.
(6) "Environmental control bonds" means bonds, debentures,
notes, certificates of participation, certificates of beneficial
interest, certificates of ownership or other evidences of
indebtedness or ownership that are issued by a qualifying utility
or an assignee, the proceeds of which are used directly or
indirectly to recover, finance, or refinance environmental control
costs and financing costs, and that are secured by or payable from
environmental control revenues.
(7) "Environmental control charge" means a nonbypassable
charge paid by a customer of a qualifying utility for the recovery
of environmental control costs and financing costs.
(8) "Environmental control cost" means any cost, including capitalized cost relating to regulatory assets and capitalized cost
associated with design and engineering work, incurred or expected
to be incurred by a qualifying utility in undertaking an
environmental control activity and, with respect to an
environmental control activity, includes the unrecovered value of
property that is retired, together with any demolition or similar
cost that exceeds the salvage value of the property.
"Environmental control cost" includes preliminary expenses and
investments associated with environmental control activity that are
incurred prior to the issuance of a financing order and that are to
be reimbursed from the proceeds of environmental control bonds.
"Environmental control cost" does not include any monetary penalty,
fine or forfeiture assessed against a qualifying utility by a
government agency or court under a federal or state environmental
statute, rule or regulation.
(9) "Environmental control equipment" means any device,
equipment, structure, process, facility or technology that is
designed for the primary purpose of preventing, reducing or
remediating environmental emissions and that has been or is to be
constructed or installed at a qualifying generating facility.
(10) "Environmental control property" means all of the
following:
(A) The rights and interests of a qualifying utility or an assignee under a financing order, including the right to impose,
charge, collect and receive environmental control charges in the
amount necessary to provide for the full payment and recovery of
all environmental control costs and financing costs determined to
be recoverable in the financing order and to obtain adjustments to
the charges as provided in this section and any interest in the
rights and interests.
(B) All revenues, receipts, collections, rights to payment,
payments, moneys, claims or other proceeds arising from the rights
and interests specified in paragraph (A) of this subdivision.
(11) "Environmental control revenues" means all revenues,
receipts, collections, payments, moneys, claims or other proceeds
arising from environmental control property.
(12) "Environmental emissions" means the discharge or release
of emissions from electric generating facilities into the air, land
or waters of the state.
(13) "Equity ratio" means, as of any given time of
determination, the common equity of a qualifying utility as
calculated pursuant to the uniform system of accounts required to
be used in the filings of the qualifying utility with the federal
Energy Regulatory Commission. "Equity ratio" shall be calculated
excluding the effect of the issuance of environmental control bonds
or the write down of discontinued operations.
(14) "Financing cost" means the costs to issue, service,
repay, or refinance environmental control bonds, whether incurred
or paid upon issuance of the bonds or over the life of the bonds,
and approved for recovery by the Commission in a financing order.
"Financing cost" may include any of the following:
(A) Principal, interest, and redemption premiums that are
payable on environmental control bonds.
(B) Any payment required under an ancillary agreement and any
amount required to fund or replenish a reserve account or other
account established under any indenture, ancillary agreement or
other financing document relating to the environmental control
bonds.
(C) The cost of retiring or refunding any existing debt and
equity securities of a qualifying utility in connection with the
issuance of environmental control bonds, but only to the extent the
securities were issued for the purpose of financing environmental
control costs.
(D) Any costs incurred by or on behalf of or allocated to a
qualifying utility to obtain modifications of or amendments to any
indenture, financing agreement, security agreement or similar
agreement or instrument relating to any existing secured or
unsecured obligation of a qualifying utility or an affiliate of a
qualifying utility, or any costs incurred by or allocated to a qualifying utility to obtain any consent, release, waiver or
approval from any holder of such an obligation, that are necessary
to be incurred to permit a qualifying utility to issue or cause the
issuance of environmental control bonds.
(E) Any taxes, franchise fees or license fees imposed on
environmental control revenues.
(F) Any cost related to issuing and servicing environmental
control bonds or the application for a financing order, including,
without limitation, servicing fees and expenses, trustee fees and
expenses, legal fees and expenses, administrative fees, placement
fees, capitalized interest, rating agency fees and any other
related cost that is approved for recovery in the financing order.
(15) "Financing order" means an order of the Commission
pursuant to subsection (d) of this section that grants, in whole or
in part, an application filed pursuant to subsection (c) of this
section and that authorizes the construction and installation of
environmental control equipment, the issuance of environmental
control bonds in one or more series, the imposition, charging and
collection of environmental control charges, and the creation of
environmental control property. A financing order may set forth
conditions or contingencies on the effectiveness of the relief
authorized therein and may grant relief that is different from that
which was requested in the application.
(16) "Financing parties" means:
(A) Any trustee, collateral agent or other person acting for
the benefit of any bondholder.
(B) Any party to an ancillary agreement the rights and
obligations of which relate to or depend upon the existence of
environmental control property, the enforcement and priority of a
security interest in environmental control property, the timely
collection and payment of environmental control revenues or a
combination of these factors.
(17) "Financing statement" means a financing statement as
defined in subdivision (39), subsection (a), section one hundred
two, article nine, chapter forty-six of this code.
(18) "Investment grade" means, with respect to the unsecured
debt obligations of a qualifying utility at any given time of
determination, a rating that is within the top four investment
rating categories as published by at least one
nationally-recognized statistical rating organization as recognized
by the United States Securities and Exchange Commission.
(19) "Nonbypassable" means that the payment of an
environmental control charge may not be avoided by any electric
service customer located within a utility service area, and must be
paid by any such customer that receives electric delivery service
from the qualifying utility for as long as the environmental control bonds are outstanding.
(20) "Nonutility affiliate" means, with respect to any
qualifying utility, a person that: (i) Is an affiliate of the
qualifying utility as defined in 15 U. S. C. §79b(a)(11); and (ii)
is not a public utility that provides retail utility service to
customers in the state within the meaning of section two, article
one of this chapter.
(21) "Parent" means, with respect to any qualifying utility,
any registered holding company or other person that holds a
majority ownership or membership interest in the qualifying
utility.
(22) "Qualifying generating facility" means any electric
generating facility that: (i) Has generated electric energy for
ultimate sale to customers in the state before the effective date
of this section; and (ii) is owned by a qualifying utility or, on
the expected date of issuance of the environmental control bonds
authorized in a financing order, will be owned by a qualifying
utility.
(23) "Qualifying utility" means:
(A) Any public utility that is: (i) Engaged in the delivery
of electric energy to customers in this state; and (ii) at any time
between the date which is two years immediately preceding the
effective date of this section and the date on which an application for a financing order is made, has or had a credit rating on its
unsecured debt obligations that is below investment grade.
(B) For so long as environmental control bonds issued pursuant
to a financing order are outstanding and the related environmental
control costs and financing costs have not been paid in full, the
public utility to which the financing order was issued and its
successors.
(24) "Registered holding company" means, with respect to a
qualifying utility, a person that is: (i) A registered holding
company as defined in 15 U. S. C. §79b(a)(12); and (ii) an
affiliate of the qualifying utility as defined in 15 U. S. C.
§79b(a)(11).
(25) "Regulatory sanctions" means, under the circumstances
presented, any regulatory or ratemaking sanction or penalty that
the Commission is authorized to impose pursuant to this chapter or
any proceeding for the enforcement of any provision of this chapter
or any order of the Commission that the Commission is authorized to
pursue or conduct pursuant to this chapter, including without
limitation: (i) The initiation of any proceeding in which the
qualifying utility is required to show cause why it should not be
required to comply with the terms and conditions of a financing
order or the requirements of this section; (ii) the imposition of
civil penalties pursuant to section three, article four of this chapter and the imposition of criminal penalties pursuant to
section four of said article, in either case with reference to the
provisions of section eight of said article; and (iii) a proceeding
by mandamus or injunction as provided in section two of this
article.
(26) "Successor" means, with respect to any legal entity,
another legal entity that succeeds by operation of law to the
rights and obligations of the first legal entity pursuant to any
bankruptcy, reorganization, restructuring or other insolvency
proceeding, any merger, acquisition, or consolidation, or any sale
or transfer of assets, whether any of these occur as a result of a
restructuring of the electric power industry or otherwise.
(27) "Utility service area" means: (i) The geographic area of
the state in which a qualifying utility provides electric delivery
service to customers at the time of issuance of a financing order;
and (ii) for as long as environmental control bonds issued pursuant
to a financing order are outstanding, any additions to or
enlargements of said geographic area, whether or not approved by
the Commission in a formal proceeding.
(c) Application for financing order. --
(1) A qualifying utility, or two or more affiliated qualifying
utilities, may apply to the Commission for a financing order under
this section.
(2) An application for a financing order under this section
shall be filed only as provided in this subdivision.
(A) An application for a financing order under this section
shall be filed as part of the application of the qualifying utility
or qualifying utilities under section eleven of this article for a
certificate of public convenience and necessity to engage in
environmental control activities.
(B) If a qualifying utility or qualifying utilities have an
application for a certificate of public convenience and necessity
to engage in environmental control activities pending before the
Commission on the effective date of this section, the qualifying
utility or qualifying utilities may file a separate application for
a financing order and the Commission shall join or consolidate the
application for a financing order with the pending application for
a certificate of public convenience and necessity. Notwithstanding
any provision of section eleven of this article to the contrary or
the total project cost of the proposed environmental control
activities, the Commission shall render its final decision on any
joined or consolidated proceeding for a certificate of public
convenience and necessity and a financing order as described in
this paragraph within two hundred seventy days of the filing of the
application for the financing order and within ninety days after
final submission of the joined or consolidated application for decision following a hearing.
(3) In addition to any other information required by the
Commission, an application for a financing order shall include the
following information:
(A) Evidence that the applicant is a qualifying utility;
(B) A description of the environmental control activities that
the qualifying utility proposes to undertake, including a detailed
description of the environmental control equipment to be
constructed or installed at one or more qualifying generation
facilities;
(C) An explanation why the environmental control activities
described in the application are necessary in the context of the
qualifying utility's operations, current and anticipated
environmental regulations, the prospect of enforcement proceedings
or litigation against the qualifying utility if the environmental
control activities are not undertaken and the utility's long-range
environmental compliance plans;
(D) A description of any alternatives to the environmental
control activities described in the application that the qualifying
utility considered and an explanation of why each alternative
either is not feasible or was not selected;
(E) An estimate of the environmental control costs associated
with the environmental control activities described in the application, including the estimated cost of the environmental
control equipment proposed to be installed;
(F) An estimated schedule for the construction or installation
of the environmental control equipment;
(G) An estimate of the date on which the environmental control
bonds are expected to be issued and the expected term over which
the financing costs associated with the issuance are expected to be
recovered, or if the bonds are expected to be issued in more than
one series, the estimated issuance date and expected term for each
bond issuance;
(H) The portion of the environmental control costs the
qualifying utility proposes to finance through the issuance of one
or more series of environmental control bonds;
(I) An estimate of the financing costs associated with each
series of environmental control bonds proposed to be issued;
(J) An estimate of the amount of the environmental control
charges necessary to recover the environmental control costs and
financing costs estimated in the application and the proposed
calculation thereof, which estimate and calculation should take
into account the estimated date of issuance and estimated principal
amount of each series of environmental control bonds proposed to be
issued;
(K) A proposed methodology for allocating financing costs among customer classes;
(L) A description of the proposed adjustment mechanism; and
(M) A description of the benefits to the customers of the
qualifying utility and the state that are expected to result from
the financing of the environmental control costs with environmental
control bonds as opposed to the use of traditional utility
financing mechanisms.
(4) An application for a financing order may restate or
incorporate by reference any information required pursuant to
subdivision (3) of this subsection that the qualifying utility
previously filed with the Commission in connection with an
application for a certificate of public convenience and necessity
under section eleven of this article as described in paragraph (B),
subdivision (2) of this subsection.
(d) Issuance of financing order. --
(1) Notice of an application for a financing order shall be
given as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, with
the publication area being each county in which the environmental
control activities are to be undertaken and each county in the
state in which the qualifying utility provides service to
customers. If no substantial protest is received within thirty
days after the publication of notice, the Commission may waive formal hearing on the application.
(2) The Commission shall issue a financing order, or an order
rejecting the application for a financing order, as part of its
final order on the application of the qualifying utility or
qualifying utilities for a certificate of public convenience and
necessity to engage in environmental control activities as
described in subdivision (2), subsection (c) of this section.
(3) The Commission shall issue a financing order if the
Commission finds all of the following:
(A) That the applicant is a qualifying utility;
(B) That the environmental control activities, including the
environmental control equipment to be constructed or installed at
one or more qualifying generation facilities, are necessary and
prudent under the circumstances and are preferable to any
alternatives available to the qualifying utility;
(C) That the cost of the environmental control activities,
including the environmental control equipment to be constructed or
installed at one or more qualifying generation facilities, is
reasonable;
(D) That the proposed issuance of environmental control bonds
will result in overall costs to customers of the qualifying utility
that: (1) Are lower than would result from the use of traditional
utility financing mechanisms; and (2) are just and reasonable;
(E) That the financing of the environmental control costs with
environmental control bonds will result in benefits to the
customers of the qualifying utility and the state; and
(F) That the proposed issuance of environmental control bonds,
together with the imposition and collection of the environmental
control charges on customers of the qualifying utility, are just
and reasonable and are otherwise consistent with the public
interest and constitute a prudent, reasonable and appropriate
mechanism for the financing of the environmental control activities
described in the application.
(4) The Commission shall include the following findings and
requirements in a financing order:
(A) A determination of the maximum amount of environmental
control costs that may be financed from proceeds of environmental
control bonds authorized to be issued in the financing order;
(B) A description of the financing costs that may be recovered
through environmental control charges and the period over which the
costs may be recovered, subject to the application of the
adjustment mechanism as provided in subsection (e) of this section.
As part of this description, the Commission may include qualitative
or quantitative limitations on the financing costs authorized in
the financing order;
(C) A description of the adjustment mechanism and a finding that it is just and reasonable; and
(D) A description of the environmental control property that
is created and that may be used to pay, and secure the payment of,
the environmental control bonds and financing costs authorized to
be issued in the financing order.
(5) A financing order may provide that the creation of
environmental control property shall be simultaneous with the sale
of the environmental control property to an assignee as provided in
the application and the pledge of the environmental control
property to secure environmental control bonds.
(6) A financing order may authorize the qualifying utility to
conduct environmental control activities, including the
construction or installation of environmental control equipment, on
an estimated schedule approved in the financing order and through
the issuance of more than one series of environmental control
bonds. In this case, the qualifying utility will not subsequently
be required to secure a separate financing order for each issuance
of environmental control bonds or for each scheduled phase of the
construction or installation of environmental control equipment
approved in the financing order.
(7) The Commission may require, as a condition to the
effectiveness of the financing order but in every circumstance
subject to the limitations set forth in subdivision (1), subsection (f) of this section, that the qualifying utility give appropriate
assurances to the Commission that the qualifying utility and its
parent will abide by the following conditions during any period in
which any environmental control bonds issued pursuant to the
financing order are outstanding, in addition to any other
obligation either may have under this code or federal law:
(A) Without first obtaining the prior consent and approval of
the Commission, the qualifying utility will not:
(1) Lend money, directly or indirectly, to a registered
holding company or a nonutility affiliate; or
(2) Guarantee the obligations of a registered holding company
or a nonutility affiliate.
(B) If: (i) For a period of twelve consecutive months
immediately preceding the date of determination, the qualifying
utility has had an equity ratio of below thirty percent and neither
the qualifying utility nor its parent has had a credit rating on
its unsecured debt obligations that is investment grade; and (ii)
the Commission determines that the present ability of the
qualifying utility to meet its public service obligations would be
impaired by the payment of dividends, the Commission may order the
qualifying utility to limit or cease the payment of dividends for
a period not exceeding one hundred eighty days from the date of
determination, which order may be extended for one or more additional periods not to exceed one hundred eighty days each if
the Commission determines that the conditions set forth in this
paragraph continue to exist as of the date of each such
determination.
(C) Neither the parent nor a nonutility affiliate will direct
or require the qualifying utility to file a voluntary petition in
bankruptcy: Provided, That nothing in this paragraph shall
preclude the qualifying utility from filing a voluntary petition in
bankruptcy if in the determination of the board of directors of the
qualifying utility in the exercise of its fiduciary duty, the
filing of its own voluntary petition in bankruptcy would be proper
under applicable federal statutory and common law.
(8) A financing order may require the qualifying utility to
file with the Commission a periodic report showing the receipt and
disbursement of proceeds of environmental control bonds. A
financing order may authorize the staff of the Commission to review
and audit the books and records of the qualifying utility relating
to the receipt and disbursement of proceeds of environmental
control bonds. The provisions of this subdivision shall not be
construed to limit the authority of the Commission under this
chapter to investigate the practices of the qualifying utility or
to audit the books and records of the qualifying utility.
(9) In the case of two or more affiliated qualifying utilities that have jointly applied for a financing order as provided in
subdivision (1), subsection (c) of this section, a financing order
may authorize each affiliated qualifying utility:
(A) to impose environmental control charges on its customers,
notwithstanding the fact that the qualifying generating facility at
which the environmental control activities are to be conducted is
owned, or on the expected date of issuance of the environmental
control bonds authorized in the financing order will be owned, by
fewer than all of the affiliated qualifying utilities; and
(B) To issue environmental control bonds and to receive and
use the proceeds thereof as provided in subdivision (1), subsection
(j) of this section, notwithstanding the fact that all or a portion
of the proceeds are expected to be used for environmental control
activities to be conducted at a qualifying generating facility the
ownership of which is as specified in paragraph (A) of this
subdivision.
(e) Application of adjustment mechanism. --
(1) If the Commission issues a financing order, the Commission
shall periodically approve the application of the adjustment
mechanism specified in the financing order to correct for any
over-collection or under-collection of the environmental control
charges and to provide for timely payment of scheduled principal of
and interest on the environmental control bonds and the payment and recovery of other financing costs in accordance with the financing
order. Application of the adjustment mechanism shall occur at
least annually or more frequently as provided in the financing
order.
(2) On the same day the qualifying utility files with the
Commission its calculation of the adjustment, it shall cause notice
of the filing to be given, in the form specified in the financing
order, as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code in a
newspaper of statewide circulation published each weekday in
Kanawha County: Provided, That this publication shall be made only
if the calculation of the adjustment filed by the qualifying
utility with the Commission would result in an increase in the
amount of the environmental control charge.
(3) The Commission shall allow interested parties thirty days
from the date the qualifying utility filed the calculation of the
adjustment within which to make comments, which shall be limited to
the mathematical accuracy of the calculation and of the amount of
the adjustment. If the Commission determines that a hearing is
necessary, the Commission shall hold a hearing on the comments
within forty days of the date the qualifying utility filed the
calculation of the adjustment.
(4) Each adjustment to the environmental control charge, in an amount as calculated by the qualifying utility but incorporating
any correction for mathematical inaccuracy as determined by the
Commission at or after the hearing, shall automatically become
effective: (i) Sixty days following the date on which the
qualifying utility files with the Commission its calculation of the
adjustment; or (ii) on any earlier date specified in an order of
the Commission approving the application of the adjustment.
(5) No adjustment pursuant to this subsection, and no
proceeding held pursuant to this subsection, shall in any way
affect the irrevocability of the financing order as specified in
subsection (f) of this section.
(f) Irrevocability of financing order. --
(1) A financing order is irrevocable and the Commission may
not reduce, impair, postpone or terminate the environmental control
charges approved in the financing order or impair the environmental
control property or the collection or recovery of environmental
control revenues.
(2) A financing order may be subsequently amended on or after
the date of issuance of environmental control bonds authorized
thereunder only: (A) At the request of the qualifying utility; (B)
in accordance with any restrictions and limitations on amendment
set forth in the financing order; and (C) subject to the
limitations set forth in subdivision (1) of this subsection.
(3) No change in the credit rating on the unsecured
obligations of a qualifying utility from the credit rating that
supported the determination by the Commission required in paragraph
(A), subdivision (3), subsection (d) of this section shall impair
the irrevocability of the financing order specified in subdivision
(1) of this subsection.
(g) Judicial review. -- An order of the Commission issued
pursuant to subdivision (2), subsection (d) of this section is a
final order of the Commission. Any party aggrieved by the issuance
of any such order may petition for suspension and review thereof by
the Supreme Court of Appeals pursuant to section one, article five
of this chapter. In the case of any petition for suspension and
review, the Supreme Court of Appeals shall proceed to hear and
determine the action as expeditiously as practicable and give the
action precedence over other matters not accorded similar
precedence by law.
(h) Effect of financing order. --
(1) A financing order shall remain in effect until the
environmental control bonds issued pursuant to the financing order
have been paid in full and all financing costs relating to the
environmental control bonds have been paid in full.
(2) A financing order shall remain in effect and unabated
notwithstanding the bankruptcy, reorganization, or insolvency of the qualifying utility or any affiliate thereof or the commencement
of any judicial or nonjudicial proceeding therefor.
(3) For so long as environmental control bonds issued pursuant
to a financing order are outstanding and the related environmental
control costs and financing costs have not been paid in full, the
environmental control charges authorized to be imposed in the
financing order shall be nonbypassable and shall apply to:
(A) All customers of the qualifying utility located within the
utility service area, whether or not the customers may become
entitled by law to purchase electric generation services from a
provider of electric generation services other than a qualifying
utility; and
(B) Any person or legal entity located within the utility
service area that may subsequently receive electric delivery
service from another public utility operating in the same service
area.
(i) Limitations on jurisdiction of Commission. --
(1) If the Commission issues a financing order, the Commission
may not, in exercising its powers and carrying out its duties
regarding regulation and ratemaking, consider environmental control
bonds issued pursuant to the financing order to be the debt of the
qualifying utility, the environmental control charges paid under
the financing order to be revenue of the qualifying utility, or the environmental control costs or financing costs specified in the
financing order to be the costs of the qualifying utility, nor may
the Commission determine that any action taken by a qualifying
utility that is consistent with the financing order is unjust or
unreasonable from a regulatory or ratemaking perspective:
Provided, That subject to the limitations set forth in subsection
(f) of this section, nothing in this subdivision shall: (i) Affect
the authority of the Commission to apply the adjustment mechanism
as provided in subsection (e) of this section; (ii) prevent or
preclude the Commission from investigating the compliance of a
qualifying utility with the terms and conditions of a financing
order and requiring compliance therewith; or (iii) prevent or
preclude the Commission from imposing regulatory sanctions against
a qualifying utility for failure to comply with the terms and
conditions of a financing order or the requirements of this
section.
(2) The Commission may not order or otherwise require,
directly or indirectly, any public utility to use environmental
control bonds to finance any project, addition, plant, facility,
extension, capital improvement, environmental control equipment, or
any other expenditure.
(3) The Commission may not refuse to allow the recovery of any
costs associated with the performance of environmental control activities by a public utility solely because the public utility
has elected or may elect to finance the performance of those
activities through a financing mechanism other than the issuance of
environmental control bonds.
(j) Duties of qualifying utility. --
(1) A qualifying utility for which a financing order has been
issued shall cause the proceeds of any environmental control bonds
issued pursuant to a financing order to be placed in a separate
account. A qualifying utility may use the proceeds of the issuance
of environmental control bonds for paying environmental control
costs and financing costs and for no other purpose.
(2) A qualifying utility for which a financing order has been
issued shall annually provide to its customers a concise
explanation of the environmental control charges approved in a
financing order, as modified by subsequent issuances of
environmental control bonds authorized under a financing order, if
any, and by application of the adjustment mechanism as provided in
subsection (e) of this section. These explanations may be made by
bill inserts, website information, or other appropriate means.
(3) Environmental control revenues shall be applied solely to
the repayment of environmental control bonds and other financing
costs.
(4) The failure of a qualifying utility to apply the proceeds of an issuance of environmental control bonds in a reasonable,
prudent and appropriate manner or otherwise comply with any
provision of this section shall not invalidate, impair or affect
any financing order, environmental control property, environmental
control charge or environmental control bonds: Provided, That
subject to the limitations set forth in subsection (f) of this
section, nothing in this subdivision shall prevent or preclude the
Commission from imposing regulatory sanctions against a qualifying
utility for failure to comply with the terms and conditions of a
financing order or the requirements of this section.
(k) Environmental control property. --
(1) Environmental control property that is specified in a
financing order shall constitute an existing, present property
right, notwithstanding the fact that the imposition and collection
of environmental control charges depend on the qualifying utility
continuing to provide electric energy or continuing to perform its
servicing functions relating to the collection of environmental
control charges or on the level of future energy consumption.
Environmental control property shall exist whether or not the
environmental control revenues have been billed, have accrued or
have been collected, and notwithstanding the fact that the value or
amount of the environmental control property is dependent on the
future provision of service to customers by the qualifying utility.
(2) All environmental control property specified in a
financing order shall continue to exist until the environmental
control bonds issued pursuant to a financing order are paid in full
and all financing costs relating to the bonds have been paid in
full.
(3) All or any portion of environmental control property may
be transferred, sold, conveyed, or assigned to any person or entity
not affiliated with the qualifying utility or to any affiliate of
the qualifying utility created for the limited purposes of
acquiring, owning or administering environmental control property
or issuing environmental control bonds under the financing order or
a combination of these purposes. All or any portion of
environmental control property may be pledged to secure the payment
of environmental control bonds, amounts payable to financing
parties and bondholders, amounts payable under any ancillary
agreement and other financing costs. Any transfer, sale,
conveyance, assignment, grant of a security interest in or pledge
of environmental control property by a qualifying utility or
affiliate of a qualifying utility to an affiliate of the qualifying
utility, to the extent previously authorized in a financing order,
does not require the prior consent and approval of the Commission
under section twelve of this article.
(4) If a qualifying utility defaults on any required payment of environmental control revenues, a court, upon application by an
interested party, and without limiting any other remedies available
to the applying party, shall order the sequestration and payment of
the environmental control revenues for the benefit of bondholders,
any assignee, and any financing parties. The order shall remain in
full force and effect notwithstanding any bankruptcy,
reorganization, or other insolvency proceedings with respect to the
qualifying utility or any affiliate thereof.
(5) Environmental control property and environmental control
revenues, and the interests of an assignee, bondholder, or
financing party in environmental control property and environmental
control revenues, are not subject to setoff, counterclaim,
surcharge or defense by the qualifying utility or any other person
or in connection with the bankruptcy, reorganization or other
insolvency proceeding of the qualifying utility, any affiliate
thereof or any other entity.
(6) Any successor to a qualifying utility shall be bound by
the requirements of this section and shall perform and satisfy all
obligations of, and have the same rights under a financing order
as, the qualifying utility under the financing order in the same
manner and to the same extent as the qualifying utility, including
without limitation, the obligation to collect and pay to the person
entitled to receive them environmental control revenues.
(l) Security interests. -- Except as otherwise provided in
this subsection, the creation, perfection and enforcement of any
security interest in environmental control property to secure the
repayment of the principal of and interest on environmental control
bonds, amounts payable under any ancillary agreement and other
financing costs are governed by this subsection and not the
provisions of chapter forty-six of this code. All of the following
shall apply:
(1) The description or indication of environmental control
property in a transfer or security agreement and a financing
statement is sufficient only if the description or indication
refers to this section and the financing order creating the
environmental control property. This subdivision applies to all
purported transfers of, and all purported grants of liens on or
security interests in, environmental control property, regardless
of whether the related transfer or security agreement was entered
into, or the related financing statement was filed, before or after
the effective date of this section.
(2) A security interest in environmental control property is
created, valid, and binding at the later of the time: (i) The
financing order is issued; (ii) a security agreement is executed
and delivered; and (iii) value is received for the environmental
control bonds. The security interest attaches without any physical delivery of collateral or other act, and the lien of the security
interest shall be valid, binding and perfected against all parties
having claims of any kind in tort, contract, or otherwise against
the person granting the security interest, regardless of whether
such parties have notice of the lien, upon the filing of a
financing statement with the office of the Secretary of State. The
office of the Secretary of State shall maintain any such financing
statement in the same manner and in the same record keeping system
it maintains for financing statements filed pursuant to article
nine, chapter forty-six of this code. The filing of any financing
statement under this subdivision shall be governed by the
provisions regarding the filing of financing statements in article
nine, chapter forty-six of this code.
(3) A security interest in environmental control property is
a continuously perfected security interest and has priority over
any other lien, created by operation of law or otherwise, which may
subsequently attach to the environmental control property unless
the holder of any such lien has agreed in writing otherwise.
(4) The priority of a security interest in environmental
control property is not affected by the commingling of
environmental control revenues with other amounts. Any pledgee or
secured party shall have a perfected security interest in the
amount of all environmental control revenues that are deposited in any cash or deposit account of the qualifying utility in which
environmental control revenues have been commingled with other
funds and any other security interest that may apply to those funds
shall be terminated when they are transferred to a segregated
account for the assignee or a financing party.
(5) No subsequent order of the Commission amending a financing
order pursuant to subdivision (2), subsection (f) of this section,
and no application of the adjustment mechanism as provided in
subsection (e) of this section, will affect the validity,
perfection or priority of a security interest in or transfer of
environmental control property.
(m) Sales of environmental control property. --
(1) Any sale, assignment or transfer of environmental control
property shall be an absolute transfer and true sale of, and not a
pledge of or secured transaction relating to, the seller's right,
title and interest in, to and under the environmental control
property if the documents governing the transaction expressly state
that the transaction is a sale or other absolute transfer. A
transfer of an interest in environmental control property may be
created only when all of the following have occurred: (i) The
financing order creating the environmental control property has
become effective; (ii) the documents evidencing the transfer of
environmental control property have been executed and delivered to the assignee; and (iii) value is received. Upon the filing of a
financing statement with the office of the Secretary of State, a
transfer of an interest in environmental control property shall be
perfected against all third persons, including any judicial lien or
other lien creditors or any claims of the seller or creditors of
the seller, other than creditors holding a prior security interest,
ownership interest or assignment in the environmental control
property previously perfected in accordance with this subdivision
or subdivision (2), subsection (l) of this section. The office of
the Secretary of State shall maintain any such financing statement
in the same manner and in the same record-keeping system it
maintains for financing statements filed pursuant to article nine,
chapter forty-six of this code.
(2) The characterization of the sale, assignment or transfer
as an absolute transfer and true sale and the corresponding
characterization of the property interest of the purchaser, shall
not be affected or impaired by, among other things, the occurrence
of any of the following factors:
(A) Commingling of environmental control revenues with other
amounts;
(B) The retention by the seller of: (i) A partial or residual
interest, including an equity interest, in the environmental
control property, whether direct or indirect, or whether subordinate or otherwise; or (ii) the right to recover costs
associated with taxes, franchise fees or license fees imposed on
the collection of environmental control revenues;
(C) Any recourse that the purchaser may have against the
seller;
(D) Any indemnification rights, obligations or repurchase
rights made or provided by the seller;
(E) The obligation of the seller to collect environmental
control revenues on behalf of an assignee;
(F) The treatment of the sale, assignment or transfer for tax,
financial reporting or other purposes;
(G) Any subsequent order of the Commission amending a
financing order pursuant to subdivision (2), subsection (f) of this
section; or
(H) Any application of the adjustment mechanism as provided in
subsection (e) of this section.
(n) Exemption from municipal taxation. -- The imposition,
collection and receipt of environmental control revenues are not
subject to taxation by any municipality of the state under the
authority granted to municipalities in sections five and five-a,
article thirteen, chapter eight of this code.
(o) Environmental control bonds not public debt. --
Environmental control bonds issued pursuant to a financing order and the provisions of this section shall not constitute a debt or
a pledge of the faith and credit or taxing power of this state or
of any county, municipality or any other political subdivision of
this state. Bondholders shall have no right to have taxes levied
by the Legislature or the taxing authority of any county,
municipality or any other political subdivision of this state for
the payment of the principal thereof or interest thereon. The
issuance of environmental control bonds does not, directly or
indirectly or contingently, obligate the state or a political
subdivision of the state to levy any tax or make any appropriation
for payment of the principal of or interest on the bonds.
(p) Environmental control bonds as legal investments. -- Any
of the following may legally invest any sinking funds, moneys or
other funds belonging to them or under their control in
environmental control bonds:
(1) The state, the West Virginia Investment Management Board,
the West Virginia Housing Development Fund, municipal corporations,
political subdivisions, public bodies and public officers except
for members of the Public Service Commission.
(2) Banks and bankers, savings and loan associations, credit
unions, trust companies, building and loan associations, savings
banks and institutions, deposit guarantee associations, investment
companies, insurance companies and associations and other persons carrying on a banking or insurance business, including domestic for
life and domestic not-for-life insurance companies; and
(3) Personal representatives, guardians, trustees and other
fiduciaries.
(q) State pledge. --
(1) The state pledges to and agrees with the bondholders, any
assignee and any financing parties that the state will not take or
permit any action that impairs the value of environmental control
property or, except as allowed under subsection (e) of this
section, reduce, alter or impair environmental control charges that
are imposed, collected and remitted for the benefit of the
bondholders, any assignee, and any financing parties, until any
principal, interest and redemption premium in respect of
environmental control bonds, all financing costs and all amounts to
be paid to an assignee or financing party under an ancillary
agreement are paid or performed in full.
(2) Any person who issues environmental control bonds is
permitted to include the pledge specified in subdivision (1) of
this subsection in the environmental control bonds, ancillary
agreements and documentation related to the issuance and marketing
of the environmental control bonds.
(r) Choice of law. -- The law governing the validity,
enforceability, attachment, perfection, priority and exercise of remedies with respect to the transfer of an interest or right or
creation of a security interest in any environmental control
property, environmental control charge or financing order shall be
the laws of the State of West Virginia as set forth in this section
and article nine, chapter forty-six of this code.
(s) Conflicts. -- In the event of conflict between this
section and any other law regarding the attachment, assignment or
perfection, or the effect of perfection, or priority of any
security interest in or transfer of environmental control property,
this section shall govern to the extent of the conflict.
(t) Effect of invalidity on actions. -- Effective on the date
that environmental control bonds are first issued under this
section, if any provision of this section is held to be invalid or
is invalidated, superseded, replaced, repealed or expires for any
reason, that occurrence shall not affect any action allowed under
this section that is taken by the Commission, a qualifying utility,
an assignee, a collection agent, a financing party, a bondholder,
or a party to an ancillary agreement, and any such action shall
remain in full force and effect.
(u) Effectiveness of section. -- No qualifying utility may
make initial application for a financing order after the date which
is five years after the effective date of this section. This
subsection shall not be construed to preclude any qualifying utility for which the Commission has initially issued a financing
order from applying to the Commission: (i) For a subsequent order
amending the financing order pursuant to subdivision (2),
subsection (f) of this section; or (ii) for approval of the
issuance of environmental control bonds to refund all or a portion
of an outstanding series of environmental control bonds.
(v) Severability. -- If any subsection, subdivision, paragraph
or subparagraph of this section or the application thereof to any
person, circumstance, or transaction is held by a court of
competent jurisdiction to be unconstitutional or invalid, the
unconstitutionality or invalidity shall not affect the
constitutionality or validity of any other subsection, subdivision,
paragraph or subparagraph of this section or its application or
validity to any person, circumstance, or transaction, including
without limitation, the irrevocability of a financing order issued
pursuant to this section, the validity of the issuance of
environmental control bonds, the imposition of environmental
control charges, the transfer or assignment of environmental
control property, or the collection and recovery of environmental
control revenues. To these ends, the Legislature hereby declares
that the provisions of this section are intended to be severable
and that the Legislature would have enacted this section even if
any subsection, subdivision, paragraph or subparagraph of this section held to be unconstitutional or invalid had not been
included in this section.
CHAPTER 46. UNIFORM COMMERCIAL CODE.
ARTICLE 9. SECURED TRANSACTIONS; SALES OF ACCOUNTS AND CHATTEL
PAPER.
SUBPART 2. APPLICABILITY OF ARTICLE.
§46-9-109. Scope.
(a) General scope of article. -- Except as otherwise provided
in subsections (c) and (d) of this section, this article applies
to:
(1) A transaction, regardless of its form, that creates a
security interest in personal property or fixtures by contract;
(2) An agricultural lien;
(3) A sale of accounts, chattel paper, payment intangibles or
promissory notes;
(4) A consignment;
(5) A security interest arising under section 2-401, 2-505,
2-711(3) or 2A-508(5) as provided in section 9-110; and
(6) A security interest arising under section 4-210 or 5-118.
(b) Security interest in secured obligation. -- The
application of this article to a security interest in a secured
obligation is not affected by the fact that the obligation is
itself secured by a transaction or interest to which this article does not apply.
(c) Extent to which article does not apply. -- This article
does not apply to the extent that:
(1) A statute, regulation or treaty of the United States
preempts this article; or
(2) The rights of a transferee beneficiary or nominated person
under a letter of credit are independent and superior under section
5-114.
(d) Inapplicability of article. -- This article does not apply
to:
(1) A landlord's lien, other than an agricultural lien;
(2) A lien, other than an agricultural lien, given by statute
or other rule of law for services or materials, but section 9-333
applies with respect to priority of the lien;
(3) An assignment of a claim for wages, salary or other
compensation of an employee;
(4) A sale of accounts, chattel paper, payment intangibles or
promissory notes as part of a sale of the business out of which
they arose;
(5) An assignment of accounts, chattel paper, payment
intangibles or promissory notes which is for the purpose of
collection only;
(6) An assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract;
(7) An assignment of a single account, payment intangible or
promissory note to an assignee in full or partial satisfaction of
a preexisting indebtedness;
(8) A transfer of an interest in or an assignment of a claim
under a policy of insurance, other than an assignment by or to a
health care provider of a health care-insurance receivable and any
subsequent assignment of the right to payment, but sections 9-315
and 9-322 apply with respect to proceeds and priorities in
proceeds;
(9) An assignment of a right represented by a judgment, other
than a judgment taken on a right to payment that was collateral;
(10) A right of recoupment or set-off, but:
(A) Section 9-340 applies with respect to the effectiveness of
rights of recoupment or set-off against deposit accounts; and
(B) Section 9-404 applies with respect to defenses or claims
of an account debtor;
(11) The creation or transfer of an interest in or lien on
real property, including a lease or rents thereunder, except to the
extent that provision is made for:
(A) Liens on real property in sections 9-203 and 9-308;
(B) Fixtures in section 9-334;
(C) Fixture filings in sections 9-501, 9-502, 9-512, 9-516, and 9-519; and
(D) Security agreements covering personal and real property in
section 9-604;
(12) An assignment of a claim arising in tort, other than a
commercial tort claim, but sections 9-315 and 9-322 apply with
respect to proceeds and priorities in proceeds;
(13) An assignment of a deposit account in a consumer
transaction, but sections 9-315 and 9-322 apply with respect to
proceeds and priorities in proceeds; or
(14) A transfer by a government or a governmental unit; or
(15) A transfer of security interest in any interest or right,
or any portion or any interest or right in any environmental
control property, environmental control charge or financing order
as each term is defined in section four-e, article two, chapter
twenty-four of this code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 455, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 455) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 455) takes effect from passage.
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 concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 456, Relating to cure offer
from merchant or seller to consumer.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 458, Permitting transfer of
State Police for certain inappropriate conduct; relocation expense.
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 two, section twenty, line four, after the word
"substantiated" by inserting the words "and substantial";
On page two, section twenty, line seven, after the word
"conduct" by inserting the words "that has occurred within the past
four years and";
On page two, section twenty, line ten, after the word "made"
by inserting the words "for political reasons or";
On page two, section twenty, line twelve, by striking out the
words "or political reasons";
And,
On page four, section twenty, line forty-five, after the word "family." by inserting the following: However, any transferred
member who was transferred because of inappropriate personal or
professional conduct shall only be given a relocation expense of
three hundred dollars if the transfer necessitated the relocation
of the member's family.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 458) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 492, Relating to claims against state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect July 1,
2005, of
Eng. Com. Sub. for Senate Bill No. 498, Clarifying
responsibility of Prosecuting Attorneys Institute; other
provisions.
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. Com. Sub. for Senate Bill No. 522, Extending time for
Hurricane council to meet as levying body.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
THE CITY COUNCIL OF HURRICANE MEETING AS A LEVYING BODY EXTENDED.
§1. Extending time for the city of Hurricane to meet as a levying
body for election of additional levies to maintain the level
of funding for the street department and the police
department.
Notwithstanding the provisions of article eight, chapter
eleven of the Code of West Virginia, one thousand nine hundred
thirty-one, as amended, to the contrary, the city council of
Hurricane is hereby authorized to extend the time for its meeting
as a levying body and certifying its actions to the State Tax
Commissioner and the State Auditor from between the seventh and
twenty-eighth days of March and the third Tuesday in April until the thirty-first day of May, two thousand five, for the purpose of
submitting to the voters of the city of Hurricane the continuation
of an additional city levy to maintain the level of funding for the
street department and the police department where necessary.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 522--A Bill to extend the
time for the city council of Hurricane to meet as a levying body
for the purpose of presenting to the voters of the city of
Hurricane an election to continue an additional city levy to
maintain the level of funding for the street department and the
police department from between the seventh and twenty-eighth days
of March and the third Tuesday in April until the thirty-first day
of May, two thousand five.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 522, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 522) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 522) takes effect from passage.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 582, Granting concurrent jurisdiction to
family court and circuit court to set support in abuse and neglect
cases.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the
following matters:
(1) All actions for divorce, annulment or separate maintenance
brought under the provisions of article three, four or five,
chapter forty-eight of this code except as provided in subsections
(b) and (c) of this section;
(2) All actions to obtain orders of child support brought
under the provisions of articles eleven, twelve and fourteen,
chapter forty-eight of this code;
(3) All actions to establish paternity brought under the
provisions of article twenty-four, chapter forty-eight of this code
and any dependent claims related to such actions regarding child
support, parenting plans or other allocation of custodial
responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the
provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family
support brought under article sixteen, chapter forty-eight of this
code and for the interstate enforcement of child custody brought
under the provisions of article twenty of said chapter;
(6) All actions for the establishment of a parenting plan or
other allocation of custodial responsibility or decision-making
responsibility for a child, including actions brought under the
uniform child custody jurisdiction and enforcement act, as provided
in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue
contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans
or other allocation of custodial responsibility or decision-making
responsibility for a child, child support, spousal support or
domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child or for child support or
spousal support;
(10) All actions brought, including civil contempt
proceedings, to enforce an order of spousal or child support or to
enforce an order for a parenting plan or other allocation of
custodial responsibility or decision-making responsibility for a
child;
(11) All actions brought by an obligor to contest the
enforcement of an order of support through the withholding from
income of amounts payable as support or to contest an affidavit of
accrued support, filed with the circuit clerk, which seeks to
collect an arrearage;
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent
jurisdiction with the circuit court;
(14) All proceedings for payment of attorney fees if the
family court judge has jurisdiction of the underlying action;
(15) All proceedings for property distribution brought under
article seven, chapter forty-eight of this code;
(16) All proceedings to obtain spousal support brought under
article eight, chapter forty-eight of this code; and
(17) All proceedings relating to the appointment of guardians or curators of minor children brought pursuant to sections three,
four and six, article ten, chapter forty-four of this code,
exercising concurrent jurisdiction with the circuit court; and
(18) Concurrently with the circuit court, all proceedings to
set support obligations in cases arising under the provisions of
articles five, six and seven, chapter forty-nine of this code.
(b) If an action for divorce, annulment or separate
maintenance does not require the establishment of a parenting plan
or other allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time
of the filing of the action, the parties also file a written
property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate
maintenance is pending and a petition is filed pursuant to the
provisions of article six, chapter forty-nine of this code alleging
abuse or neglect of a child by either of the parties to the
divorce, annulment or separate maintenance action, the orders of
the circuit court in which the abuse or neglect petition is filed
shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making
responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for
the child between the parents has been entered by the family court
in the pending action for divorce, annulment or separate
maintenance, the family court shall stay any further proceedings
concerning the allocation of custodial and decision-making
responsibility for the child between the parents and defer to the
orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A
family court is a court of record only for the purpose of
exercising jurisdiction in the matters for which the jurisdiction
of the family court is specifically authorized in this section and
in chapter forty-eight of this code. A family court may not
exercise the powers given courts of record in section one, article
five of this chapter or exercise any other powers provided for
courts of record in this code unless specifically authorized by the
Legislature. A family court judge is not a "judge of any court of
record" or a "judge of a court of record" as the terms are defined
and used in article nine of this chapter.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. S. B. No. 582) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 584, Allowing Bureau for Child Support
Enforcement enter orders for modification of child support amounts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §48-11-106a; and that
said code be amended by adding thereto a new section, designated
§48-14-107; and that said code be amended by adding thereto
sections, designated §48-18-201, §48-18-202, §48-18-203, §48-18-
204, §48-18-205 and §48-18-206, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106a. Modification of support order with the assistance of
Bureau for Child Support Enforcement.
In addition to any other procedure which may exist by law, any party seeking the recalculation of support and modification under
a child support order due to a substantial change in circumstances
pursuant to the provisions of section one hundred six of this
article may seek and obtain the assistance of the Bureau for Child
Support Enforcement, pursuant to the procedures established under
the provisions of sections two hundred one through two hundred six,
inclusive, article eighteen of this chapter, in the preparation,
assessment and presentation of an appropriate petition for
modification of a support order, including the identification and
narrowing of issues associated with a requested recalculation of
support prior to filing the petition, and the preparation and
presentation of an appropriate petition and proposed order for
modification for consideration by the family court.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-107. Modification of support order with the assistance of
Bureau for Child Support Enforcement.
In addition to any other procedure which may exist by law, any
party seeking the recalculation of support and modification under
a child support order due to a substantial change in circumstances
pursuant to the provisions of section one hundred six of this
article may seek and obtain the assistance of the Bureau for Child
Support Enforcement, pursuant to the procedures established under
the provisions of sections two hundred one through two hundred six, inclusive, article eighteen of this chapter, in the preparation,
assessment and presentation of an appropriate petition for
modification of a support order, including the identification and
narrowing of issues associated with a requested recalculation of
support prior to filing the petition, and the preparation and
presentation of an appropriate petition and proposed order for
modification for consideration by the family court.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-201. General provisions related to requests for assistance,
recalculation of support amounts, preparation of petition and
proposed orders.
(a) An obligor or an obligee under a child support order may
seek and obtain the assistance of the Bureau for Child Support
Enforcement to perform a recalculation of the of the support amount
and prepare and present a petition seeking modification of a child
support order and the presentation of a proposed order modifying
support to the family court.
(b) A request for services authorized by this section shall
constitute an application for services from the Bureau for Child
Support Enforcement.
(c) The duties and actions directed or authorized when a
request is made pursuant to this section shall be exercised by the
employees and agents of the Bureau for Child Support Enforcement under the supervision and direction of Bureau for Child Support
Enforcement Attorneys as part of, and in addition to, their duties
as set out in section one-hundred-three, article nineteen of this
chapter.
(d) In performing its duties under this section, the Bureau
for Child Support Enforcement is authorized to issue subpoenas and
subpoenas duces tecum, pursuant to the provisions of section one
hundred twenty-three of this article, to require an obligor or
obligee to produce and permit inspection and copying of designated
books, papers, documents or tangible things pursuant to Rule 45 of
the Rules of Civil Procedure or section one-hundred twenty-three,
article eighteen of this chapter.
(e) When the Bureau for Child Support Enforcement is
authorized or required by this section to notify or give notice to
a party, the notice shall be given in the same manner as required
for service of a petition for modification of support filed with
the family court.
(f) The procedures and forms used shall provide that one party
may request that their residential address and the address and
identity of the employer not be revealed to another party.
(g) The Bureau for Child Support Enforcement may refuse to
accept a request or take action on a request for assistance if it
determines there are existing ongoing proceedings with which action taken on the request would create a conflict, or if it determines
that the request was not in good faith based on the allegations
made, a history of multiple such requests, or other information.
If the Bureau for Child Support Enforcement makes a determination
to refuse the request for assistance, it shall notify the party
making the request for assistance, and if the responding party has
already been notified of the request, the responding party.
(h) The Bureau for Child Support Enforcement shall prepare an
explanation of the process and procedures it will use to process
the request for assistance under this section. The explanation
shall be made available generally to the public, given to every
person who makes a request, and included with the notice to the
responding party.
§48-18-202. Request for assistance by party.
To make a request for assistance under this article, a party
shall submit the request in writing to the Bureau for Child Support
Enforcement on a form provided by the Bureau. The written request
form shall include all of the requesting party's information known
to the party that is relevant to determine the child support
amount. The request shall be accompanied by:
(1) A copy of the order being modified, or in the discretion
of the Bureau, information sufficient to permit the Bureau to
retrieve or identify the order;
(2) A form containing a statement of all of the requesting
party's information known to the party that is relevant to
determining the amount of child support, including a general
statement or argument advancing the reason the request is being
made;
(3) Copies of documentation reasonably available to the
requesting party setting forth all of the requesting party's
information that is relevant to determine the amount of child
support;
(4) A statement setting forth the relevant information
pertaining to the responding party's earnings and child support
that is known or believed to be true by the requesting party;
(5) Copies of any relevant documentation which the requesting
party may have in its possession which would be relevant to
determining the responding party's child support obligations; and
(6) A statement of all other known proceedings pending court
proceedings or other pending requests for assistance involving the
parties or related to the child or children whose support is being
reevaluated.
§48-18-203 Bureau processing of request for assistance or
recalculation.
(a) Upon receipt of a request from a party pursuant to section
two hundred two of this article, the Bureau for Child Support Enforcement shall notify the responding party that a request for
assistance in the recalculation of the support amount and the
related preparation and presentation of a petition or proposed
order to modify an existing child support order has been submitted
to the Bureau for Child Support Enforcement.
(b) As a part of the notification provided under subsection
(a) of this section, notification provided by the Bureau for Child
Support Enforcement to the responding party shall include the
following:
(1) A blank information statement form, and an explanation of
the form;
(2) A statement advising the responding party that if the
responding party does not fill out and return the information
statement with accompanying documentation, that the information
contained on the requesting party's information statement and any
attached documentation may be used to prepare a petition and
proposed order to modify the parties' existing child support
obligations and filed with the family court, if the submitted
information shows a substantial change in the parties'
circumstances;
(3) A copy of the information statement supplied by the
requesting party in support of its request;
(4) A request that the responding party submit a statement and supply a copy of any information or documentation which the
responding may have which would challenge, contradict or supplement
the information which has been previously submitted by the
requesting party, to allow the Bureau for Child Support Enforcement
to more accurately recalculate any modified child support
obligations of the parties;
(5) An explanation that the Bureau for Child Support
Enforcement may refuse to accept a request or take action on a
request if it determines there are existing ongoing proceedings
with which action taken on the request would create a conflict;
(6) A request that responding party provide a list of all
other known proceedings pending court proceedings or other requests
for recalculation or modification of the parties' respective child
support obligations; and
(7) An explanation of the process to be followed by the Bureau
for Child Support Enforcement in providing the requested
assistance, recalculation of the parties' modified child support
obligations, including the preparation of a petition proposed order
to modify the parties' existing child support obligations, when
appropriate.
(c) The Bureau for Child Support Enforcement may issue a
subpoena or subpoena duces tecum, pursuant to the provisions of
section one hundred twenty-three of this article, to require the responding party to produce and permit inspection and copying of
designated books, papers, documents or tangible things for
information which are relevant to determine child support.
(d) The Bureau for Child Support Enforcement may issue a
subpoena, pursuant to the provisions of section one hundred twenty-
three of this article, to produce and permit inspection and copying
of designated books, papers, documents or tangible things, relevant
to the determination of child support to persons other than the
parties to the support order.
(e) The Bureau for Child Support Enforcement may use other
information and other communications or procedures available to the
Bureau for Child Support Enforcement to gather information relevant
to the determination of child support.
§48-18-204. Request for meeting with the Bureau.
(a) Either party may ask for an in-person meeting with the
Bureau, prior to the preparation or presentation of any petition to
seek a modification of a child support order or any proposed
modification order to the family court. As a part of the initial
contact and notice to the parties after its receipt of an
assistance request under this article, the Bureau for Child Support
Enforcement shall inform the parties of their right to meet with
the Bureau for Child Support Enforcement, to discuss the
circumstances and any relevant pertaining to the parties' child support obligations. If either party asks for a meeting, the
responding party shall be notified that a meeting has been
requested. The parties shall not meet with the Bureau at the same
time except as allowed in the discretion of the Bureau. No party
may be required to meet with the Bureau.
(b) A party may modify an information statement or provide
additional documents at the meeting or at any time before the
Bureau sends its proposed order to the family court.
§48-18-205. Bureau action on request of recalculation and
presentation of proposed order.
(a) If the Bureau determines that no credible information
exists to establish finding of a substantial change in
circumstances as required by section one-hundred five, article
eleven or section one hundred six, article fourteen of this
chapter, the Bureau for Child Support Enforcement shall notify the
parties of that fact, and notify the parties that the Bureau for
Child Support Enforcement will not be preparing a petition of
proposed order seeking modification of the parties' child support
obligation. Under those circumstances, if the parties disagree
with the Bureau for Child Support Enforcement's assessment and wish
to independently file a petition for modification, the parties may
still seek modification of child support by filing a petition for
modification of an order for support with the family court under the provisions of sections one hundred five or one hundred six of
article eleven of this chapter, or under the provisions of section
one hundred six, article fourteen of this chapter.
(b) If the Bureau for Child Support Enforcement determines
that there has been a substantial change of circumstances as
required by section one-hundred five, article eleven of this
chapter or by section one hundred-six, article fourteen of this
chapter, then the Bureau for Child Support Enforcement shall
prepare a petition and proposed order modifying the child support
order, to be filed with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support
Enforcement filed pursuant to this article shall include the
following:
(1) A copy of the proposed order;
(2) A print out of the child support guidelines calculations;
(3) A notice of the Bureau's action;
(4) The documents and statements relied upon;
(5) Any statement of findings or justification the Bureau is
required or determines to include; and
(6) A form and instructions for filing an objection to the
proposed order, should a party wish to do so, which form shall
require a statement of the ground or grounds for filing the
objection.
(d) The Bureau for Child Support Enforcement's proposed order
shall be based on the child support guidelines: Provided, That the
Bureau may disregard the child support guidelines or adjust the
amount as allowed by article thirteen, section seven hundred two of
this chapter in the following instances:
(1) When the previous child support order disregarded the
child support guidelines; the grounds for the disregarding or
adjusting the guidelines are stated in the worksheet or previous
order or are agreed upon by the parties, or are otherwise clear;
and those grounds continue to exist and can be applied to the
current circumstances; or
(2) If new grounds for the disregard or adjustment are fully
explained in the proposed order.
§48-18-206. Family court action on petition and proposed order
prepared by Bureau for Child Support Enforcement.
(a) Upon receipt of petition for modification and proposed
order prepared by the Bureau for Child Support Enforcement in
accordance with the provisions of this article, the circuit clerk
shall serve a copy of the petition and the proposed order upon all
parties to the proceeding by personal service or by United States
certified mail, return receipt requested, and direct the parties to
file any objections to the proposed modified child support order
within twenty days of the date of receiving such notice.
(b) Within five days of the filing of a petition for
modification and proposed order, the circuit clerk shall notify the
family court.
(b) If no party files timely objection to the proposed order
or timely requests a hearing on the petition after receiving such
notice, then the family court may proceed to review the petition
and proposed order sua sponte, and may issue the proposed order.
If the family court receives no objection, but the family court
concludes that the proposed order should not be entered or should
be changed, it shall set the matter for hearing.
(c) If the family court receives an objection to the petition
or proposed order, the family court shall set a date and time for
hearing.
(d) At any hearing on the proposed order, the family court
shall treat the proposed order as a motion for modification made by
the party requesting the Bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall
not be an appeal from the Bureau's recommended order. The family
court shall notify the parties of the hearing and of the parties'
rights and the procedures to be followed.
(e) The fees to be assessed for filing and service of the
petition and the disbursement of the fee for petitions filed
pursuant to this section shall be the same as the fee charged by the clerk for petitioning for an expedited modification of a child
support order, as set forth in section eleven, article one, chapter
fifty-nine of this code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 584, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 584) passed with its title.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 588, Relating to cruelty to
animals and intervention program for certain youths.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section thirteen-f, line eighteen, after "(b)"
by striking out the remainder of the bill and inserting in lieu
thereof the following: The Department of Juvenile Services shall
establish a task force to create an Animal Cruelty Early
Intervention Program. Services provided by the Department for
Juvenile Services in the Animal Cruelty Early Intervention Program
shall be consistent with the provisions of article five-b of this
chapter and shall be designed to develop skills and supports within
families and to resolve problems related to the juveniles who have
engaged in animal cruelty. Services may include, but are not
limited to, referral of juveniles and parents, guardians or
custodians and other family members to services for psychiatric or
other medical care, or psychological, welfare, legal, educational
or other social services, as appropriate to the needs of the
juvenile and his or her family.
(c) The effective date for this section is the first day of July, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.
(a) If any person cruelly mistreats, abandons or withholds
proper sustenance, including food, water, shelter or medical
treatment, necessary to sustain normal health and fitness or to end
suffering or abandons any animal to die, or intentionally,
knowingly or recklessly leaves an animal unattended and confined in
a motor vehicle when physical injury to or death of the animal is
likely to result, or rides an animal when it is physically unfit,
or baits or harasses any animal for the purpose of making it
perform for a person's amusement, or cruelly chains any animal or
uses, trains or possesses any domesticated animal for the purpose
of seizing, detaining or maltreating any other domesticated animal,
he or she is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than three hundred nor more than one two
thousand dollars or confined in jail not more than six months, or
both.
(b) If any person intentionally tortures, or mutilates or
maliciously kills an animal, or causes, procures or authorizes any
other person to torture, mutilate or maliciously kill an animal, he
or she is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility not less than one nor more than
three five years and be fined not less than one thousand dollars
nor more than five thousand dollars. For the purposes of this
subsection, "torture" means an action taken for the primary purpose
of inflicting pain.
(c) Any person, other than a licensed veterinarian or a person
acting under the direction or with the approval of a licensed
veterinarian, who knowingly and willfully administers or causes to
be administered to any animal participating in any contest any
controlled substance or any other drug for the purpose of altering
or otherwise affecting said animal's performance is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one five hundred nor more than one two thousand dollars.
(d) Any person convicted of a violation of this section shall
forfeit his or her interest in any animal and all interest in the
animal shall vest in the humane society or county pound of the
county in which said the conviction was rendered and the person
shall, in addition to any fine imposed, be liable for any costs
incurred or to be incurred by the humane society or county pound as
a result.
(e) For the purpose of this section, the term "controlled
substance" shall have has the same meaning ascribed to it by
subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(f) The provisions of this section do not apply to lawful acts
of hunting, fishing, trapping or animal training or farm livestock,
poultry, gaming fowl or wildlife kept in private or licensed game
farms if kept and maintained according to usual and accepted
standards of livestock, poultry, gaming fowl or wildlife or game
farm production and management, nor to humane use of animals or
activities regulated under and in conformity with the provisions of
7 U. S. C. §2131, et seq., and the regulations promulgated
thereunder, as both statutes and regulations are in effect on the
effective date of this section.
(g) Notwithstanding the provisions of subsection (a) of this
section, any person convicted of a second or subsequent violation
of said subsection is guilty of a misdemeanor and shall be confined
in jail for a period of not less than ninety days nor more than one
year, fined not less than five hundred dollars nor more than two
three thousand dollars, or both. The incarceration set forth in
this subsection shall be mandatory unless the provisions of
subsection (h) of this section are complied with.
(h) (1) Notwithstanding any provision of this code to the
contrary, no person who has been convicted of a violation of the
provisions of subsection (a) or (b) of this section may be granted
probation until the defendant has undergone a complete psychiatric or psychological evaluation and the court has reviewed the
evaluation. Unless the defendant is determined by the court to be
indigent, he or she shall be responsible for the cost of said
evaluation.
(2) For any person convicted of a violation of subsection (a)
or subsection (b) of this section, the court may, in addition to
the penalties provided in this section, impose a requirement that
he or she complete a program of anger management intervention for
perpetrators of animal cruelty. Unless the defendant is determined
by the court to be indigent, he or she shall be responsible for the
cost of the program.
(i) In addition to any other penalty which can be imposed for
a violation of this section, a court shall prohibit any person so
convicted from possessing, owning or residing with any animal or
type of animal for a period of five years following entry of a
misdemeanor conviction and fifteen years following entry of a
felony conviction. A violation under this subsection is a
misdemeanor punishable by a fine not exceeding two thousand dollars
and forfeiture of the animal.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 588, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 588) passed with its title.
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 concurrence by that body in the passage of
Eng. Senate Bill No. 640, Allowing notary public and
commissioner use stamped imprint.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 646, Excluding certain
homeowners' associations proceeds from business and occupation tax.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 659, Clarifying definition of "money
transmission".
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 670, Relating to electing
supervisors for conservation districts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 3. ELECTIONS.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-5. Detailed accounts and verified financial statements
required.
(a) Every candidate, financial agent, person and association
of persons, organization of any kind, including every corporation,
directly or indirectly, supporting a political committee
established pursuant to paragraph (C), subdivision (1), subsection
(b), section eight of this article or engaging in other activities permitted by this section and also including the treasurer or
equivalent officer of the association or organization, advocating
or opposing the nomination, election or defeat of any candidate,
and the treasurer of every political party committee shall keep
detailed accounts of every sum of money or other thing of value
received by him or her, including all loans of money or things of
value, and of all expenditures and disbursements made, liabilities
incurred, by the candidate, financial agent, person, association or
organization or committee, for political purposes, or by any of the
officers or members of the committee, or any person acting under
its authority or on its behalf.
(b) Every person or association of persons required to keep
detailed accounts under this section shall file with the officers
hereinafter prescribed a detailed itemized sworn statement,
according to the following provisions and times:
(1) On the last Saturday in March or within six days
thereafter and annually whenever the total of all financial
transactions relating to an election exceed five hundred dollars a
statement which shall include all financial transactions which have
taken place by the date of that statement, subsequent to any
previous statement filed within the previous five years under this
section;
(2) Not less than ten nor more than seventeen days preceding each primary or other election, a statement which shall include all
financial transactions which have taken place by the date of the
statement, subsequent to the previous statement, if any;
(3) Not less than twenty-five nor more than thirty-one days
after each primary or other election, a statement which shall
include all financial transactions which have taken place by the
date of the statement, subsequent to the previous statement; and
(4) On the first Saturday in September or within six days
thereafter, preceding the general election day whenever the total
of all financial transactions relating to an election exceed five
hundred dollars or whenever any loans are outstanding, a statement
which shall include all financial transactions which have taken
place by the date of the statement, subsequent to the previous
statement.
(c) Every person who shall announce as a write-in candidate
for any elective office and his or her financial agent or election
organization of any kind shall comply with all of the requirements
of this section after public announcement of the person's candidacy
has been made.
(d) For purposes of this section, the term "financial
transactions" includes all contributions or loans received and all
repayments of loans or expenditures made to promote the candidacy
of any person by any candidate or any organization advocating or opposing the nomination, election or defeat of any candidate to be
voted on.
(e) Candidates for the office of conservation district
supervisor elected pursuant to the provisions of article twenty-
one-a, chapter nineteen of this code shall only be required to file
the reports required by subdivisions (2) and (3), subsection (b)
immediately prior to and after the general election.
CHAPTER 19. AGRICULTURE.
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-3. Definitions.
Wherever used or referred to in this article, unless a
different meaning clearly appears from the context:
(1) "Agency of this state" includes the government of this
state and any subdivision, agency or instrumentality, corporate or
otherwise, of the government of this state.
(2) "Committee" or "State Conservation Committee" means the
agency created in section four of this article.
(3) "District" or "conservation district" means a subdivision
of this state, organized in accordance with the provisions of this
article, for the purposes, with the powers and subject to the
restrictions hereinafter set forth.
(4)"Governing body" means the supervisors of any conservation
district, town or city, council, city commission, county court or body acting in lieu of a county court, in this state, and the term
"governmental division" means any conservation district, town, city
or county in this state.
(5) "Land occupier" or "occupier of land" includes any person,
firm or corporation who shall hold title to, or shall be in
possession of, any lands lying within a district organized under
the provisions of this article, whether as owner, lessee, renter or
tenant.
(6) "Landowners" or "owners of land" includes any person or
persons, firm or corporation who shall hold title to three or more
acres of any lands lying within a district organized under the
provisions of this article.
(7) "Notice" means notice published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such
publication shall be the county in which is located the appropriate
area. At any hearing held pursuant to such notice at the time and
place designated in such notice, adjournment may be made from time
to time without the necessity of renewing such notice for such
adjournment dates.
(8) "Petition" means a petition filed under the provisions of
subsection (a), section five of this article for the creation of a
district.
(9) "Soil conservation", "erosion control" or "erosion
prevention projects", when used throughout the article, shall
denote those projects that have been established by federal
agencies in cooperation with state agencies for the purpose of
demonstrating soil erosion control and water conservation
practices.
(10) "State" means the State of West Virginia.
(11) "Supervisor" means one of the members of the governing
body of a district, elected or appointed in accordance with the
provisions of this article.
(12) "United States" or "agencies of the United States"
includes the United States of America, Natural Resources
Conservation Service of the United States Department of Agriculture
and any other agency or instrumentality, corporate or otherwise, of
the United States of America.
(13) "Works of improvement" means such structures as may be
necessary or convenient for flood prevention or the conservation,
development, utilization or disposal of water.
§19-21A-4. State Conservation Committee; continuation.
(a) The State Conservation Committee is continued. It serves
as an agency of the state and is to perform the functions conferred
upon it in this article. The committee consists of the following
ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry
Experiment Station;
(C) The Secretary of the Department of Environmental
Protection;
(D) The State Commissioner of Agriculture, who is the
chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of
Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the
Senate, the four citizen members. Members shall be appointed for
four-year terms, which are staggered in accordance with the initial
appointments under prior enactment of this section. In the event
of a vacancy, the appointment is for the unexpired term.
(c) The Committee may invite the Secretary of Agriculture of
the United States of America to appoint one person to serve with
the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions,
shall adopt a seal, which shall be judicially noticed, and may
perform those acts, hold public hearings and adopt or propose for legislative approval, rules necessary for the execution of its
functions under this article.
(e) The State Conservation Committee may employ an
administrative officer, technical experts and other agents and
employees, permanent and temporary, as it requires. The
administrative officer and support staff shall be known as the West
Virginia Conservation Agency. The Committee shall determine their
qualifications, duties and compensation. The Committee may call
upon the Attorney General of the state for legal services it
requires. It may delegate to its chairperson, to one or more of
its members, or to one or more agents or employees, powers and
duties it considers proper. The Committee may secure necessary and
suitable office accommodations and the necessary supplies and
equipment. Upon request of the Committee, for the purpose of
carrying out any of its functions, the supervising officer of any
state agency or of any state institution of learning shall, insofar
as may be possible, under available appropriations and having due
regard to the needs of the agency to which the request is directed,
assign or detail to the Committee, members of the staff or
personnel of the agency or institution of learning and make special
reports, surveys or studies required by the Committee.
(f) A member of the Committee holds office so long as he or
she retains the office by virtue of which he or she is serving on the Committee. A majority of the Committee is a quorum and the
concurrence of a majority in any matter within their duties is
required for its determination. The chairperson and members of the
Committee may receive no compensation for their services on the
Committee, but are entitled to reimbursement of expenses, including
traveling expenses necessarily incurred in the discharge of their
duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees
and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate public
record of all proceedings and of all resolutions, rules and orders
issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts
and disbursements.
(g) In addition to other duties and powers conferred upon the
State Conservation Committee, it may:
(1) Offer appropriate assistance to the supervisors of
conservation districts, organized as provided in this article, in
the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts,
organized under the provisions of this article, informed of the
activities and experience of all other districts organized under
this article and facilitate an interchange of advice and experience between the districts and cooperation between them;
(3) Coordinate the programs of the several conservation
districts so far as this may be done by advice and consultation;
(4) Secure the cooperation and assistance of the United States
and any of its agencies and of agencies of this state in the work
of the districts;
(5) Disseminate information throughout the state concerning
the activities and programs of the conservation districts and
encourage the formation of the districts in areas where their
organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants
and appropriations in money, services, materials or otherwise from
the United States or any of its agencies, from the State of West
Virginia or from other sources and use or expend the money,
services, materials or other contributions in carrying out the
policy and provisions of this article, including the right to
allocate the money, services or materials in part to the various
conservation districts created by this article in order to assist
them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange,
lease, gift, grant, bequest, devise or otherwise any property, real
or personal, or rights or interests in the property; maintain,
administer, operate and improve any properties acquired; receive and retain income from the property and to expend the income as
required for operation, maintenance, administration or improvement
of the properties or in otherwise carrying out the purposes and
provisions of this article; and sell, lease or otherwise dispose of
any of its property or interests in the property in furtherance of
the purposes and the provisions of this article. Money received
from the sale of land acquired in the small watershed program shall
be deposited in the special account of the State Conservation
Committee and expended as provided in this article.
(8) To promulgate emergency and legislative rules to
effectuate the provisions of this article as amended and reenacted
by the Legislature during the regular session of the Legislature in
the year two thousand five.
§19-21A-5. Creation of conservation districts.
(a) Any twenty-five owners of land lying within the limits of
the territory proposed to be organized into a district may file a
petition with the State Conservation Committee asking that a
conservation district be organized to function in the territory
described in the petition. Such The petition shall set forth:
(1) The proposed name of said the district;
(2) That there is need, in the interest of the public health,
safety and welfare, for a conservation district to function in the
territory described in the petition;
(3) A description of the territory proposed to be organized as
a district, which description shall not be required to be given by
metes and bounds or by legal subdivisions, but shall be deemed
sufficient if generally accurate;
(4) A request that the State Conservation Committee duly
define the boundaries for such the district; that a referendum be
held within the territory so defined on the question of the
creation of a conservation district in such the territory; and that
the Committee determine that such a district be created.
Where more than one petition is filed covering neighboring
parts of the same region, whether or not these areas overlap, the
State Conservation Committee may consolidate all or any such
petitions.
(b) Within thirty days after such a petition has been filed
with the State Conservation Committee, it shall cause due notice to
be given of a proposed hearing upon the question of the
desirability and necessity, in the interest of the public health,
safety and welfare, of the creation of such district, upon the
question of the appropriate boundaries to be assigned to such
district, upon the propriety of the petition and other proceedings
taken under this article and upon all questions relevant to such
inquiries. Notice of the date, place and time of the hearing shall
be published no less than fourteen days prior to the hearing as a Class II-0 legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code. The publication
area is the county or counties where the proposed district is
located. All owners of land within the limits of the territory
described in the petition, and of lands within any territory
considered for addition to such the described territory, and all
other interested parties shall have the right to attend such the
hearings and to be heard. If it shall appear appears upon the
hearing that it may be desirable to include within the proposed
district territory outside of the area within which due notice of
the hearing has been given, the hearing shall be adjourned and due
notice of further hearing shall be given throughout the entire area
considered for inclusion in the district and such further another
hearing held. After such the hearing, if the Committee shall
determine determines, upon the facts presented at such the hearing
and upon such other relevant facts and information as may be
available, that there is need, in the interest of the public
health, safety and welfare, for a conservation district to function
in the territory considered at the hearing, it shall make and
record such determination and shall define, by metes and bounds or
by legal subdivisions, the boundaries of such district. Districts
thus defined may be a watershed or portion thereof and nothing in
this article shall be interpreted to exclude from consideration, small areas often constituting a very small part of a large
watershed. The district may be large or small, but in making such
that determination and in defining such the boundaries, the
committee shall give due weight and consideration to the topography
of the area considered and of the state, the composition of soils
therein, the distribution of erosion, the prevailing land-use
practices, the desirability and necessity of including within the
boundaries the particular lands under consideration and the
benefits such lands may receive from being included within such the
boundaries, the relation of the proposed area to existing
watersheds and agricultural regions and to other conservation
districts already organized or proposed for organization under the
provisions of this article and such other physical, geographical
and economic factors as are relevant, having due regard to the
legislative determinations set forth in section two of this
article. The territory to be included within such the boundaries
need not be contiguous. If the Committee shall determine
determines after such the hearing, after due consideration of the
said relevant facts, that there is no need for a conservation
district to function in the territory considered at the hearing, it
shall make and record such its determination and shall deny the
petition. After six months shall have expired from the date of the
denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as aforesaid and
new hearings held and determinations made thereon.
(c) After the Committee has made and recorded a determination
that there is need, in the interest of the public health, safety
and welfare, for the organization of a district in a particular
territory and has defined the boundaries thereof, it shall consider
the question whether the operation of a district within such
boundaries with the powers conferred upon conservation districts in
this article is administratively practicable and feasible. To
assist the Committee in the determination of such administrative
practicability and feasibility, it shall be is the duty of the
Committee within a reasonable time after entry of the finding that
there is need for the organization of the proposed district and the
determination of the boundaries thereof, to hold a referendum
within the proposed district upon the proposition of the creation
of the district and to cause due notice of such referendum to be
given. The question of the creation of the proposed district shall
be submitted to the registered voters of the proposed district at
the next primary or general election. All of the provisions of
chapter three of this code, unless in conflict with the provisions
of this article, apply to voting and elections on the referendum,
insofar as practicable.
The question shall be submitted by ballots upon which the words "For creation of a conservation district of the lands below
described and lying in the county (counties) of ____________,
____________, and ____________. Against creation of a conservation
district of the lands below described and lying in the county
(counties) of ___________, ____________, and ____________" shall
appear, with a square before each proposition and a direction to
insert an X mark in the square before one or the other of said the
propositions as the voter may favor or oppose creation of such a
district. The ballot shall set forth the boundaries of such the
proposed districts as determined by the Committee. All owners of
lands lying within the boundaries of the territory, as determined
by the state conservation committee, shall be eligible to vote in
such referendum.
(d) The Committee shall pay all expenses for the issuance of
such notices and the conduct of such and conducting hearings. and
referenda and shall supervise the conduct of such hearings and
referenda. It shall issue appropriate regulations promulgate rules
in accordance with the provisions of article three, chapter
twenty-nine-a of this code governing the conduct of such hearings.
and referenda and providing for the registration prior to the date
of the referendum of all eligible voters, or prescribing some other
appropriate procedure for the determination of those eligible as
voters in such referendum. No informalities in the conduct of such referendum or in any matter relating thereto shall invalidate said
referendum or the result thereof if notice shall have been given
substantially as herein provided and said referendum shall have
been fairly conducted.
(e) The Committee shall publish the result of such the
referendum and shall thereafter consider and determine whether the
operation of the district within the defined boundaries is
administratively practicable and feasible. If the Committee shall
determine determines that the operation of such the district is not
administratively practicable and feasible, it shall record such its
determination and deny the petition. If the Committee shall
determine that the operation of such the district is
administratively practicable and feasible, it shall record such the
determination and shall proceed with the organization of the
district in the manner hereinafter provided. In making such its
determination the Committee shall give due regard and weight to the
attitudes of the occupiers of lands lying within the defined
boundaries, the number of landowners eligible to vote in such the
referendum who shall have voted, the proportion of the votes cast
in such the referendum in favor of the creation of the district to
the total number of votes cast, the approximate wealth and income
of the land occupiers of the proposed district, the probable
expense of carrying on erosion-control operations within such the district and such other economic and social factors as may be
relevant to such the determination, having due regard to the
legislative determinations set forth in section two of this
article: Provided, That the Committee shall not have authority to
determine that the operation of the proposed district within the
defined boundaries is administratively practicable and feasible
unless at least sixty per centum of the votes cast in the
referendum upon the proposition of creation of the district shall
have been cast in favor of the creation of such district.
(f) If the Committee shall determine determines that the
operation of the proposed district within the defined boundaries is
administratively practicable and feasible, it shall appoint two
supervisors to act with the supervisors elected as provided
hereinafter, as the governing body of the district.
(g) The two appointed supervisors shall present to the
Secretary of State an application signed by them which shall set
forth (and such application need contain no detail other than the
mere by recitals: (1) That a petition for the creation of the
district was filed with the State Conservation Committee pursuant
to the provisions of this article and that the proceedings
specified in this article were taken pursuant to such the petition;
that the application is being filed in order to complete the
organization of the district under this article; and that the Committee has appointed them as supervisors; (2) the name and
official residence of each of the supervisors, together with a
certified copy of the appointments evidencing their right to
office; (3) the term of office of each of the supervisors; (4) the
name which is proposed for the district; and (5) the location of
the principal office of the supervisors of the district. The
application shall be subscribed and sworn to by each of the said
supervisors before an officer authorized by the laws of this state
to take and certify oaths, who shall certify upon the application
that he or she personally knows the supervisors and knows them to
be the officers as affirmed in the application and that each has
subscribed thereto in the officer's presence. The application
shall be accompanied by a statement by the State Conservation
Committee, which shall certify and such statement need contain no
detail other than the mere by recitals that a petition was filed,
notice issued and hearing held as aforesaid; that the Committee did
duly determine that there is need, in the interest of the public
health, safety and welfare, for a conservation district to function
in the proposed territory and did define the boundaries thereof;
that notice was given and a referendum held on the question of the
creation of such the district; that the result of such the
referendum showed a majority of the votes cast in such the
referendum to be in favor of the creation of the district; and that thereafter the Committee did duly determine that the operation of
the proposed district is administratively practicable and feasible.
The said statement shall set forth the boundaries of the district
as they have been defined by the Committee.
The Secretary of State shall examine the application and
statement and, if he or she finds that the name proposed for the
district is not identical with that of any other conservation
district of this state or so nearly similar as to lead to confusion
or uncertainty, he or she shall file them and shall record them in
an appropriate book of record in his or her office. If the
Secretary of State shall find finds that the name proposed for the
district is identical with that of any other conservation district
of this state, or so nearly similar as to lead to confusion and
uncertainty, he or she shall certify such that fact to the State
Conservation Committee which shall thereupon submit to the
Secretary of State a new name for the said district, which shall
not be subject to such defects. Upon receipt of such the new name,
free of such defects, the Secretary of State shall record the
application and statement, with the name so modified, in an
appropriate book of record in his or her office. The Secretary of
State shall make and issue to the said supervisors a certificate,
under the seal of the state, of the due organization of the said
district and shall record such the certificate with the application and statement. The boundaries of such the district shall include
the territory as determined by the State Conservation Committee as
aforesaid, but in no event shall they include any area included
within the boundaries of another conservation district organized
under the provisions of this article.
(h) After six months shall have has expired from the date of
entry of a determination by the State Conservation Committee that
operation of a proposed district is not administratively
practicable and feasible and denial of a petition pursuant to such
determination, subsequent petitions may be filed as aforesaid and
action taken thereon in accordance with the provisions of this
article.
(i) Petitions for including additional territory within an
existing district may be filed with the State Conservation
Committee and the proceedings herein provided for in the case of
petitions to organize a district shall be observed in the case of
petitions for such inclusion. The Committee shall prescribe the
form for such petitions, which shall be as nearly as may be in the
form prescribed in this article for petitions to organize a
district. Where the total number of landowners in the area
proposed for inclusion shall be is less than twenty-five, the
petition may be filed when signed by a majority of the landowners
of such the area and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land
lying within the proposed additional area shall be eligible to
vote.
(j) In any suit, action or proceeding involving the validity
or enforcement of, or relating to, any contract, proceeding or
action of the district, the district shall be deemed to have been
established in accordance with the provisions of this article upon
proof of the issuance of the aforesaid certificate by the Secretary
of State. A copy of such the certificate duly certified by the
Secretary of State shall be admissible in evidence in any such
suit, action or proceeding and shall be proof of the filing and
contents thereof.
§19-21A-6. Election of supervisors for each district.
Within thirty days after the date of issuance by the Secretary
of State of a certificate of organization of a conservation
district, nominating petitions may be filed with the State
Conservation Committee to nominate candidates for supervisors of
such the district. A candidate for supervisor shall own land in
the district and have the education, training or experience
necessary to carry out the duties required by this article and
rules promulgated thereunder. A candidate shall file with the
Committee a sworn written statement specifying that he or she meets
the requirements of office. A candidate may not be placed on the ballot or be seated as a supervisor unless he or she meets these
requirements. The Committee shall provide a list of qualified
candidates to the Secretary of State prior to any election for
supervisor at the time and in the manner specified by the
Secretary.
The Committee shall have authority to extend the time within
which nominating petitions may be filed. No such nominating
petition shall be accepted by the Committee unless it shall be is
subscribed by twenty-five or more owners of lands lying within the
boundaries of such the district and within the boundaries of the
county in which the candidate resides. Landowners Registered
voters in the district may sign more than one such nominating
petition to nominate more than one candidate for supervisor. The
committee shall give due notice of an election to be held for the
election of one supervisor from each county or portion thereof
within the boundaries of the district. The names of all nominees
in each county on behalf of whom such nominating petitions have
been filed within the time designated, shall appear arranged in
alphabetical order of the surnames upon a ballot, with a square
before each name and a direction to insert an X mark in the square
before any one name to indicate the voter's preference. All owners
of lands lying within registered voters in the district shall be
eligible to vote in such the election for one candidate two candidates from the county or portion thereof within the boundaries
of the district in which they reside. Only such landowners shall
be eligible to vote. The candidate two candidates in each county
who shall receive the largest number of votes cast in such the
election by landowners residing in his or her county shall be one
of the elected supervisors for such district. The committee shall
pay all expenses of such election, shall supervise the conduct
thereof, shall prescribe regulations governing the conduct of such
election and the determination of the eligibility of voters therein
and shall make public the results thereof. Supervisors shall be
elected in the general election to be conducted in the year two
thousand eight as nonpartisan candidates. The term of office for
supervisor receiving the second highest number of votes in the
general election of two thousand eight shall be for two years,
commencing on the first day of January, two thousand nine, and
ending on the thirty-first day of December, two thousand eleven.
Subsequent terms of office for supervisors elected thereafter shall
be for four years. Persons currently holding the position of
supervisor shall, regardless of the expiration of the currently
designated term of office, continue to serve until the two thousand
eight election. Unless otherwise provided or in conflict with this
article, the provisions of chapter three shall apply to election of
supervisors.
§19-21A-7. Supervisors to constitute governing body of district;
qualifications and terms of supervisors; powers and duties.
(a) The governing body of the district consists of the
supervisors, appointed or elected, as provided in this article.
The two supervisors appointed by the committee shall be persons who
are by training and experience qualified to perform the specialized
skilled services which are required of them in the performance of
their duties under this section and shall be legal residents and
landowners in the district.
(b) The supervisors shall designate a chairperson and may,
from time to time, change the designation. The On and after the
election of supervisors in two thousand eight, term of office of
each supervisor is three four years. A supervisor holds office
until his or her successor has been elected or appointed. In case
a new county or portion of a county is added to a district, the
committee may appoint a supervisor to represent it until the next
regular election of supervisors for the district takes place. If
a vacancy occurs among the elected supervisors of a district, the
Committee shall appoint a successor from the same county to fill
the unexpired term. The appointment shall be made from a name or
list of names submitted by local farm organizations and agencies
the conservation district.
(c) When any county or portion of a county lying within the boundaries of a district has in effect eight hundred or more signed
agreements of cooperation with occupiers of land located within the
county, then at the next regular election of supervisors the land
occupiers within the county or portion of the county are entitled
to elect two supervisors to represent the county instead of one for
the term and in the manner prescribed in this section. A majority
of the supervisors constitutes a quorum and the concurrence of a
majority in any matter within their duties is required for its
determination.
(d) (c) A supervisor is entitled to expenses and a per diem
not to exceed thirty dollars when engaged in the performance of his
or her duties.
(e) (d) The supervisors may, with the approval of the State
Committee, employ a secretary, technical experts and any other
officers, agents and employees, permanent and temporary, as they
may require and shall determine their qualifications, duties and
compensation. The supervisors may delegate to their chairperson,
to one or more supervisors or to one or more agents, or employees,
those administrative powers and duties they consider proper. The
supervisors shall furnish to the State Conservation Committee, upon
request, copies of the ordinances, rules, orders, contracts, forms
and other documents they adopt or employ and any other information
concerning their activities required in the performance of State Conservation Committee's duties under this article.
(f) (e) The supervisors shall:
(1) Require the execution of surety bonds for all employees
and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate record of
all proceedings and of all resolutions, rules and orders issued or
adopted; and
(3) Provide for an annual audit of the accounts of receipts
and disbursements.
(g) (f) Any supervisor may be removed by the State
Conservation Committee upon notice and hearing for neglect of duty
or malfeasance in office, but for no other reason.
(h) (g) The supervisors may invite the legislative body of any
municipality or county located near the territory comprised within
the district to designate a representative to advise and consult
with the supervisors of a district on all questions of program and
policy which may affect the property, water supply or other
interests of the municipality or county.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 670, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 670) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 670) takes effect from passage.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 674, Relating to textbook
sales at public institutions of higher education.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-14. Bookstores.
(a) Each governing board may establish and operate a bookstore
at the institutions under its jurisdiction to sell books,
stationery and other school and office supplies generally carried
in college bookstores.
(b) The prices to be charged may not be less than the prices
fixed by any fair trade agreements and shall, in all cases, include
in addition to the purchase price paid by the bookstore, a sufficient handling charge to cover all expenses incurred for
personal and other services, supplies and equipment, storage and
other operating expenses.
(c) Each governing board also shall ensure that bookstores
operated at institutions under its jurisdiction meet the additional
objective of minimizing minimize the costs to students of
purchasing textbooks. by adopting policies The governing board
may:
(1) which may Require the repurchase and resale of textbooks
on an institutional or a statewide basis; and
(2) Provide for the use of certain basic textbooks for a
reasonable number of years.
(d) The Legislature recognizes that in two thousand four, the
Congress of the United States commissioned the United States
Government Accountability Office to study the high prices of
college textbooks. Upon completion of the study, the Legislative
Oversight Commission on Education Accountability shall obtain the
results and any related reports produced by the Office.
(e) An employee of a governing board:
(1) May not:
(A) Receive a payment, loan, subscription, advance, deposit of
money, service, benefit or thing of value, present or promised, as
an inducement for requiring students to purchase a specific textbook for coursework or instruction; or
(B) Require for any course a textbook that includes his or her
own writing or work if the textbook incorporates either detachable
worksheets or workbook-style pages intended to be written on or
removed from the textbook. This provision does not prohibit an
employee from requiring as a supplement to a textbook any workbook
or similar material which is published independently from the
textbook; and
(2) May receive:
(A) Sample copies, instructor's copies and instructional
material which are not to be sold; and
(B) Royalties or other compensation from sales of textbooks
that include the employee's own writing or work.
(f) A governing board shall provide to students a listing of
textbooks required or assigned for any course offered at the
institution.
(1) The listing shall be prominently posted:
(A) In a central location at the institution;
(B) In any campus bookstore; and
(C) On the institution's website.
(2) The list shall include for each textbook the International
Standard Book Number (ISBN), the edition number and any other
relevant information.
(3) An institution shall post a book to the listing when the
adoption process is complete and the textbook is designated for
order by the bookstore.
(d) (g) All moneys derived from the operation of the bookstore
shall be paid into a special revenue fund as provided in section
two, article two, chapter twelve of this code. Subject to the
approval of the Governor, each governing board periodically shall
change the amount of the revolving fund necessary for the proper
and efficient operation of each bookstore.
(e) (h) Moneys derived from the operation of the bookstore
shall be used first to replenish the stock of goods and to pay the
costs of operating and maintaining the bookstore. Notwithstanding
any other provision of this section, any institution that has
contracted with a private entity for bookstore operation shall
deposit into an appropriate account all revenue generated by the
operation and enuring to the benefit of the institution. The
institution shall use the funds for nonathletic scholarships.
(i) Each governing board shall promulgate a rule in accordance
with the provisions of section six, article one of this chapter to
implement the provisions of this section.
(j) This section applies to textbook sales and bookstores
supported by an institution's auxiliary services and those operated
by a private contractor.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 674--A Bill to amend and
reenact §18B-10-14 of the Code of West Virginia, 1931, as amended,
relating to state institution of higher education bookstore
operations and textbook sales; minimizing costs to students;
requiring Legislative Oversight Commission on Education
Accountability to obtain certain textbook study report; prohibiting
institution employees from receiving benefits for requiring
specific textbooks and providing exceptions; requiring institutions
to post listing of required textbooks at certain campus locations;
requiring institutions to promulgate a rule governing textbook
sales and bookstore operations; and application to bookstores
operated by private contractor and institutional auxiliary
services.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 674, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 674) passed with its House of Delegates
amended title.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 691, Relating to termination of tenancy
of factory-built home.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section three, subsection (a), after the word
"no" by inserting the word "notice".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 691, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 691) passed with its title.
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 concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 699, Relating to shareholders'
simultaneous participation in corporate meeting.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 700, Creating Community
Infrastructure Investment Program within Department of Commerce.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 28. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.
§22-28-1. Legislative findings.
The Legislature finds and declares that:
(a) There is a growing need for the extension of public water
and sewer services throughout the state and that the extension of
such services and facilities maintains the health and economic
vitality of the citizens of West Virginia. In addition, access to
such infrastructure facilities is equal essential to development in
all regions of the state.
(b) The extension of public water and sewer services promotes
public health and safety in that it enables businesses, residences,
municipalities and other entities to comply with state and federal water quality standards.
(c) The cost of publicly owned sewer and water facilities are
normally born by the state, its subdivisions and the citizens of
West Virginia and public indebtedness incurred to construct such
facilities constitutes a financial burden on the state and its
political subdivisions, as well as residential consumers.
(d) The rates for public water and sewer services charged to
customers of all service classes have risen in recent years due
primarily to the cost of utility construction and the cost of debt
service associated with such construction.
(e) There are private business entities that are in need of
water and sewer services for various residential, commercial and
industrial projects throughout the state and that those entities
are willing to pay the cost associated with constructing needed
public water and sewer services and to dedicate the facility to the
local certificated public utility after construction of such
facilities.
(f) Those private business entities need a method by which to
enter into agreements with municipal utilities or public service
districts that would enable the construction of new infrastructure
as well as the expansion of existing facilities.
(g) The dedication of such infrastructure facilities to the
local certificated public utility without cost greatly benefits the citizens of the state and promotes industrial, commercial and
economic development.
§22-28-2. Definitions.
For the purposes of this article, the following words or terms
defined have the meaning ascribed to them herein:
(a) "Certificate of appropriateness" shall refer to the
document evidencing approval of a project and is issued by the
Secretary of the Department of Environmental Protection pursuant to
the provisions of this article. The issuance of such a certificate
shall exempt the project from the provisions of section eleven of
article two, chapter twenty-four of this code and, in the case of
a public service district, from the provisions of section twenty-
five, article thirteen-a, chapter sixteen of this code.
(b) "Community infrastructure investment agreement" shall
refer to a written agreement between a municipal utility or public
service district and a person that provides for the transfer of
legal title to a project facility from the person to the municipal
utility or public service district.
(c) "Community infrastructure investment project" shall refer
to any newly constructed or enlarged and improved project facility
that may be transferred to a municipal utility or public service
district without cost to the municipal utility or public service
district pursuant to the provisions of this article.
(d) "Person" shall refer to any individual, partnership, firm,
society, association, trust, corporation or other business entity.
(e) "Project cost" shall refer to the capital cost of proposed
community infrastructure investment project facilities to be
constructed pursuant to the provisions of this article. "Project
cost" shall also refer to newly constructed or enlarged and
improved existing project facilities. Project cost shall not refer
to any of the costs or expenses of ordinary operation and
maintenance of the project facilities once they become operational.
(f) "Project facilities" shall refer to waste water treatment
plants or water treatment plants constructed pursuant to the
provisions of this article and include, but are not limited to,
related storage buildings or structures, meters, hydrants, pump
stations, force and gravity mains, transmission lines and other
such fixtures related to the construction of water or sewer
facilities. Project facilities shall not refer to the ordinary
extension of collection and distribution lines or facilities from
or to the project constructed pursuant to the provisions of this
article to the property of any user of project facilities.
(g) "Public service district" shall refer to those public
corporations and political subdivisions of the state created
pursuant to the provisions of section two, article thirteen-a,
chapter sixteen of this code.
(h) "Secretary" shall refer to the Secretary of the Department
of Environmental Protection established in section six, article
one, chapter twenty-two of this code.
§22-28-3. Creation of community infrastructure investment project;
certificate of appropriateness; rule-making authority.
(a) There is hereby created a Community Infrastructure
Investment Program within the Department of Environmental
Protection. This Program will facilitate the construction or
expansion of project facilities for the promotion of economic
development and the protection of public health and environment in
the state. Any public service district or municipal utility that
wishes to accept a project facility constructed pursuant to a
community infrastructure investment agreement with a project cost
not to exceed ten million dollars, may apply to the secretary for
approval of such project. Nothing herein shall be construed to
require a public service district or municipal utility to use this
program.
(b) Where the Secretary shall have found that the community
infrastructure investment project shall have met the requirements
contained in this article, the Secretary shall issue a certificate
of appropriateness to the municipal utility or public service
district as evidence of such approval.
(c) Municipal utilities or public service districts may jointly enter into agreements with persons for the purpose of
applying to the Secretary of the Department of Environmental
Protection for approval of project facilities. The minimum terms
and conditions of such agreements are established by the provisions
of section four of this article.
(d) The Secretary will, by legislative rule, establish the
criteria for the approval of such projects and shall have sole
authority to make such determination.
§22-28-4. Community infrastructure investment agreements; report
to Joint Committee on Government and Finance.
(a) Municipal utilities and public service districts have the
power and authority to enter into community infrastructure
investment agreements with any person for the purpose of
constructing new project facilities, or substantially improving or
expanding project facilities.
(b) Notwithstanding any other provision in this code to the
contrary, the Secretary shall have the power and the authority to
review and approve all such community infrastructure investment
agreements pursuant to this article.
(c) Each such agreement shall contain as a minimum the
following terms and conditions to be performed by the parties
thereto:
(1) The project facilities shall be engineered and constructed in accordance with the requirements for new construction
established by the municipal utility or public service district;
(2) Proof or certification of the financial ability of the
municipal utility or public service district to maintain and
operate the public facilities;
(3) Certification that upon completion and activation of the
project facility or improvements to the project facility, the title
to the public facility shall be transferred without cost to the
municipal utility or public service district;
(4) A finding that the construction of the new public
facility, or the substantial improvement or expansion of an
existing public facility, either: (i) Fosters economic growth by
promoting commercial, industrial or residential development; and
(ii) improves water quality or otherwise enables the affected
territory to achieve compliance with any applicable state or
federal health or environmental law;
(5) The municipal utility or public service district will
receive or otherwise obtain without cost to the public all
necessary rights of way for the operation of the public facility;
(6) The rates charged by the municipal utility or public
service district to new customers to be served by the project
facility shall be the rates in effect at the time of transfer of
the project facility to the utility plus any additional cost of service borne by the municipal utility or public service district
as a result of the project facility until such time as new rates
may be finally enacted by the municipal utility or proposed by the
public service district and approved by the Public Service
Commission and the rates charged by the municipal utility or the
public service district to existing customers shall not be impacted
as a result of the obligation of the public service district or
municipal utility pursuant to the community infrastructure
investment agreement;
(7) Confirmation that the agreement does not violate any of
the bond covenants imposed on the municipal utility or public
service district;
(8) Proof that necessary permits, where applicable, have been
obtained from the Division of Health and the Department of
Environmental Protection;
(9) Evidence that the person responsible for the construction
of or improvements to the public facility has provided funding to
the municipal utility or public service district for the engagement
of an engineer qualified to design and certify the structural
integrity and capacity of the project facility;
(10) Proof that the person responsible for construction of or
improvements to the public facility has obtained a performance bond
payable to the municipal utility or public service district equal to the estimated cost of construction: Provided, That the form of
the bond required by this section shall be approved by the
Secretary and may include, at the option of the Secretary, surety
bonding, collateral bonding (including cash and securities),
establishment of an escrow account, letters of credit, performance
bonding fund participation as established by the Secretary, self-
bonding or a combination of these methods; and
(11) Any other conditions that the secretary may determine to
be relevant as established.
(d) Where the Secretary has found that the community
infrastructure investment agreement meets the requirements
contained in this article, the Secretary shall issue a certificate
of appropriateness to the parties as evidence of such approval.
(e) Not later than thirty days prior to the issuance of a
certificate of appropriateness for any community infrastructure
investment project, the Secretary shall first submit a report of
the same to the Joint Committee on Government and Finance.
§22-28-5. Authority of the Department of Environmental Protection
and Division of Health not affected.
Nothing contained in this article shall be construed to affect
the authority of the Department of Environmental Protection
pursuant to the provisions of chapter twenty-two of this code, nor
the authority of the Division of Health pursuant to the provisions of chapter sixteen of this code. Facilities discharging into the
Potomac River watershed and its tributaries, shall be designed to
achieve nutrient reductions, for both Nitrogen and Phosphorus,
consistent with West Virginia's participation in the Chesapeake Bay
Program upon implementation of the Chesapeake Bay standards by the
Secretary.
§22-28-6. Time for approval.
The Secretary shall approve or reject all applications for a
community investment infrastructure project or agreement within
thirty days, unless, by mutual agreement, such time period is
extended. In no case, shall the time period extend beyond ninety
days.
§22-28-7. Fees.
The Secretary shall establish by legislative rule a schedule
of fees reasonably calculated to pay for the costs of the
administration of the provisions of this article.
§22-28-8. Exemption from Public Service Commission approval.
All project facilities constructed or improved pursuant to the
provisions of this article shall be exempt from the provisions of
chapter twenty-four of this code until such time as title to the
public facility shall be transferred to the municipal utility or
public service district. Nothing herein shall be construed to give
the Public Service Commission authority to regulate or intervene in the approval and construction of any project or agreement provided
in this article. Notwithstanding any other provision of this code
to the contrary, the acquisition of a project facility by a
municipality or public service district under the provisions of
this article shall not require the issuance of a certificate of
convenience and necessity from the Public Service Commission.
§22-28-9. Rule-making authority.
The Secretary shall have the authority to propose legislative
rules for promulgation in accordance with the provisions of section
one, article three, chapter twenty-nine-a of this code to
effectuate the purposes of this article. Notwithstanding any
provision of this code to the contrary, the proposed legislative
rules for this article filed in the state register by the first day
of August, two thousand five, may be filed as emergency rules.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 700--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §22-28-1, §22-28-2, §22-28-3, §22-28-4, §22-28-
5, §22-28-6, §22-28-7, §22-28-8 and §22-28-9, all relating to the
creation of a Community Infrastructure Investment Program within
the Department of Environmental Protection; legislative findings; definitions; granting rule-making authority; authority to
promulgate emergency rules; establishing process for issuance of
certificate of appropriateness; providing for community
infrastructure investment agreements; setting minimum terms;
authority of Division of Health and Department of Environmental
Protection not affected; requiring report to Joint Committee on
Government and Finance; providing for administrative fees;
establishing exemption from authority of Public Service Commission;
and setting time limits for approval.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 700, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Weeks and Tomblin (Mr.
President)--31.
The nays were: Unger, White and Yoder--3.
Absent: None.
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. 700) passed with its House of Delegates
amended title.
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, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 705, Delaying effective date of Municipal
Sales and Service Tax and Municipal Use Tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section four, lines twenty-four and twenty-
five, by striking out the words "a tax pursuant to subsection (a)
of this section and that does not impose".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 705, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 705) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 705) takes effect from passage.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 716, Creating Regional Jail
Operators Partial Reimbursement Fund.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §31-20-10b; that §50-3-
1, §50-3-2 and §50-3-4a of said code be amended and reenacted; and
that §59-1-11 and §59-1-28a of said code be amended and reenacted,
all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-10b. Regional Jail Operations Partial Reimbursement Fund.
(a) There is created in the State Treasury a new fund designated the Regional Jail Operations Partial Reimbursement Fund.
(b) Revenues deposited into this Fund shall be composed of
fees collected by magistrate courts pursuant to subsection (g),
section one, and subdivision (3), subsection (a), section two,
article three, chapter fifty of this code and by circuit courts
pursuant to section eleven, article one, chapter fifty-nine of this
code.
(c) Revenues deposited into this Fund shall be used to
reimburse those counties and municipalities participating in the
regional jail system for the cost of incarceration.
(d) The State Treasurer shall, in cooperation with the
Regional Jail and Correctional Facility Authority, administer the
Fund. The State Treasurer shall determine the amount of funds
available for reimbursement and, upon receiving a report from the
Regional Jail and Correctional Facility Authority which presents
the total number of inmate days in the fiscal year immediately
concluded, the State Treasurer shall calculate the reimbursement to
each participant based upon a pro rata share formula.
(e) A participant's share shall be comparable with its total
of inmate days, which shall consist of the number of inmates it
contributed to the regional jail system and the number of days
those inmates remained incarcerated.
(f) Within ninety days of the first day of July, two thousand six, and annually thereafter, each participant shall receive its
reimbursement from this Fund.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
The following costs shall be charged in magistrate courts in
civil actions and shall be collected in advance:
(a) For filing and trying any civil action and for all
services connected therewith, but excluding services regarding
enforcement of judgment, the following amounts dependent upon the
amount of damages sought in the complaint:
Where the action is for five hundred dollars
or less$30.00
Where the action is for more than five hundred
dollars but not more than one thousand
dollars$35.00
Where the action is for more than one thousand
dollars but not more than two thousand
dollars$40.00
Where the action is for more than two thousand
dollars$50.00
Where the action seeks relief other than money
damage$30.00
Five dollars from each of the filing fees listed above shall
be deposited in the Court Security Fund created by the provisions
of section fourteen, article three, chapter fifty-one of this code.
Five dollars from each of the filing fees listed above shall
be deposited in the Courthouse Facilities Improvement Fund created
by section six, article twenty-six, chapter twenty-nine of this
code.
(b) For each service regarding enforcement of a
judgment including execution, suggestion,
garnishment and suggestee execution $ 5.00
(c) For each bond filed in a case $ 1.00
(d) For taking deposition of witness for each
hour or portion thereof$ 1.00
(e) For taking and certifying acknowledgment of
a deed or other writing or taking oath
upon an affidavit$ .50
(f) For mailing any matter required or provided
by law to be mailed by certified or
registered mail with return receipt$ 1.00
(g) For filing and trying any civil action$20.00
Costs incurred in a civil action shall be reflected in any
judgment rendered thereon. The provisions of section one, article
two, chapter fifty-nine of this code, relating to the payment of costs by poor persons, shall be applicable to all costs in civil
actions.
§50-3-2. Costs in criminal proceedings.
(a) In each criminal case before a magistrate court in which
the defendant is convicted, whether by plea or at trial, there is
imposed, in addition to other costs, fines, forfeitures or
penalties as may be allowed by law: (1) Costs in the amount of
sixty dollars, of which five dollars of that amount shall be
deposited in the Courthouse Facilities Improvement Fund created by
section six, article twenty-six, chapter twenty-nine of this code;
and (2) an amount equal to the one-day per diem provided for in
subsection (h), section ten, article twenty, chapter thirty-one of
this code; and (3) costs in the amount of thirty dollars to be
deposited in the regional jail operations partial reimbursement
fund created by section ten-b, article twenty, chapter thirty-one
of this code. A magistrate may not collect costs in advance.
Notwithstanding any other provision of this code, a person liable
for fines and court costs in a criminal proceeding in which the
defendant is confined in a jail or prison and not participating in
a work release program shall not be held liable for the fines and
court costs until ninety days after completion of the term in jail
or prison. A magistrate court shall deposit five dollars from each
of the criminal proceedings fees collected pursuant to this section in the Court Security Fund created in section fourteen, article
three, chapter fifty-one of this code. A magistrate court shall,
on or before the tenth day of the month following the month in
which the fees imposed in this section were collected, remit an
amount equal to the one-day per diem provided for in subsection
(h), section ten, article twenty, chapter thirty-one of this code
from each of the criminal proceedings in which the fees specified
in this section were collected to the magistrate court clerk or, if
there is no magistrate court clerk to the clerk of the circuit,
together with information as may be required by the rules of the
Supreme Court of Appeals and the rules of the office of chief
inspector. These moneys are paid to the sheriff who shall
distribute the moneys solely in accordance with the provisions of
section fifteen, article five, chapter seven of this code.
Amendments made to this section during the regular session of the
Legislature, two thousand one, are effective after the thirtieth
day of June, two thousand one.
(b) A magistrate shall assess costs in the amount of two
dollars and fifty cents for issuing a sheep warrant and the
appointment and swearing appraisers and docketing the proceedings.
(c) In each criminal case which must be tried by the circuit
court but in which a magistrate renders some service, costs in the
amount of ten dollars shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance with
the provisions of section six, article five, chapter sixty-two of
this code.
§50-3-4a. Disposition of criminal costs and civil filing fees into
State Treasury account for Regional Jail and Prison
Development Fund.
(a) The clerk of each magistrate court shall, at the end of
each month, pay into the Regional Jail and Prison Development Fund
in the State Treasury an amount equal to forty dollars of the costs
collected in each criminal proceeding and all but ten dollars of
the costs collected for the filing of each civil action.
(b) The clerk of each magistrate court shall, at the end of
each month, pay into the Regional Jail Operations Partial
Reimbursement Fund established in section ten-a, article twenty,
chapter thirty-one of this code the fees collected pursuant to
subsection (g), section one and subdivision (3), subsection (a),
section two of this article.
CHAPTER 59. FEES, ALLOWANCES AND COSTS, NEWSPAPERS; LEGAL
ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for
services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are
to be rendered:
(1) For instituting any civil action under the rules of civil
procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals or any other action, cause,
suit or proceeding, one hundred twenty-five forty-five dollars, of
which thirty dollars of that amount shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code and ten
dollars shall be deposited in the special revenue account created
in section six hundred three, article twenty-six, chapter
forty-eight of this code to provide legal services for domestic
violence victims;
(2) For instituting an action for medical professional
liability, two hundred sixty dollars, of which ten dollars of that
amount shall be deposited in the Courthouse Facilities Improvement
Fund created by section six, article twenty-six, chapter
twenty-nine of this code;
(3) Beginning on and after the first day of July, one thousand
nine hundred ninety-nine, for instituting an action for divorce,
separate maintenance or annulment, one hundred thirty-five dollars;
(4) For petitioning for the modification of an order involving
child custody, child visitation, child support or spousal support, eighty-five dollars; and
(5) For petitioning for an expedited modification of a child
support order, thirty-five dollars.
(b) In addition to the foregoing fees, the following fees
shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for
use in any other court or otherwise to go out of the office, for
each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including
copies, postage, registered or certified mail fees and the fee
provided by section four, article five-a, chapter thirty-eight of
this code, three dollars;
(6) For vacation or modification of a suggestee execution, one
dollar;
(7) For docketing and issuing an execution on a transcript of
judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of
error, appeal or removal to any other court, ten dollars, of which
five dollars of that amount shall be deposited in the Courthouse
Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code;
(9) For postage and express and for sending or receiving
decrees, orders or records, by mail or express, three times the
amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or
defendant, to be paid by the party requesting the same, fifty
cents;
(11) For additional service (plaintiff or appellant) where any
case remains on the docket longer than three years, for each
additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any
criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five eighty-five
dollars; and
(2) In the case of any felony, seventy-five one hundred five
dollars, of which ten dollars of that amount shall be deposited in
the Courthouse Facilities Improvement Fund created by section six,
article twenty-six, chapter twenty-nine of this code.
(d) The clerk of a circuit court shall charge and collect a
fee of twenty-five dollars per bond for services rendered by the
clerk for processing of criminal bonds, and the fee shall be paid
at the time of issuance by the person or entity set forth below:
(1) For cash bonds, the fee shall be paid by the person tendering cash as bond;
(2) For recognizance bonds secured by real estate, the fee
shall be paid by the owner of the real estate serving as surety;
(3) For recognizance bonds secured by a surety company, the
fee shall be paid by the surety company;
(4) For ten percent recognizance bonds with surety, the fee
shall be paid by the person serving as surety; and
(5) For ten percent recognizance bonds without surety, the fee
shall be paid by the person tendering ten percent of the bail
amount.
In instances in which the total of the bond is posted by more
than one bond instrument, the above fee shall be collected at the
time of issuance of each bond instrument processed by the clerk,
and all fees collected pursuant to this subsection (d) shall be
deposited in the Courthouse Facilities Improvement Fund created by
section six, article twenty-six, chapter twenty-nine of this code.
Nothing in this subsection (d) may be construed as authorizing the
clerk to collect the above fee from any person for the processing
of a personal recognizance bond; and
(e) The clerk of a circuit court shall charge and collect a
fee of ten dollars for services rendered by the clerk for
processing of bailpiece, and the fee shall be paid by the surety at
the time of issuance. All fees collected pursuant to this subsection (e) shall be deposited in the Courthouse Facilities
Improvement Fund created by section six, article twenty-six,
chapter twenty-nine of this code.
(f) No such clerk shall be required to handle or accept for
disbursement any fees, cost or amounts, of any other officer or
party not payable into the county treasury, except it be on order
of the court or in compliance with the provisions of law governing
such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees
for services in criminal cases.
(a) Except for those payments to be made from amounts equaling
filing fees received for the institution of divorce actions as
prescribed in subsection (b) of this section, and except for those
payments to be made from amounts equaling filing fees received for
the institution of actions for divorce, separate maintenance and
annulment as prescribed in said subsection, for each civil action
instituted under the rules of civil procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of
civil appeals or any other action, cause, suit or proceeding in the
circuit court, the clerk of the court shall, at the end of each
month, pay into the funds or accounts described in this subsection
an amount equal to the amount set forth in this subsection of every
filing fee received for instituting the action as follows:
(1) Into the Regional Jail and Correctional Facility Authority
Fund in the State Treasury established pursuant to the provisions
of section ten, article twenty, chapter thirty-one of this code the
amount of sixty dollars; and
(2) Into the Court Security Fund in the State Treasury
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code the amount of five dollars;
and
(3) Into the Regional Jail Operations Partial Reimbursement
Fund established pursuant to the provisions of section ten-b,
article twenty, chapter thirty-one of this code the amount of
twenty dollars.
(b) For each action for divorce, separate maintenance or
annulment instituted in the circuit court, the clerk of the court
shall, at the end of each month, report to the Supreme Court of
Appeals, the number of actions filed by persons unable to pay, and
pay into the funds or accounts in this subsection an amount equal
to the amount set forth in this subsection of every filing fee
received for instituting the divorce action as follows:
(1) Into the Regional Jail and Correctional Facility Authority
Fund in the State Treasury established pursuant to the provisions
of section ten, article twenty, chapter thirty-one of this code the
amount of ten dollars;
(2) Into the special revenue account of the State Treasury,
established pursuant to section six hundred four, article two,
chapter forty-eight of this code an amount of thirty dollars;
(3) Into the Family Court Fund established under section
twenty-two, article two-a, chapter fifty-one of this code an amount
of seventy dollars; and
(4) Into the Court Security Fund in the State Treasury,
established pursuant to the provisions of section fourteen, article
three, chapter fifty-one of this code the amount of five dollars.
(c) Notwithstanding any provision of subsection (a) or (b) of
this section to the contrary, the clerk of the court shall, at the
end of each month, pay into the Family Court Fund established under
section twenty-two, article two-a, chapter fifty-one of this code
an amount equal to the amount of every fee received for petitioning
for the modification of an order involving child custody, child
visitation, child support or spousal support as determined by
subdivision (3), subsection (a), section eleven of this article and
for petitioning for an expedited modification of a child support
order as provided in subdivision (4) of said subsection.
(d) The clerk of the court from which a protective order is
issued shall, at the end of each month, pay into the family court
fund established under section twenty-two, article two-a, chapter
fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article
twenty-seven, chapter forty-eight of this code.
(e) The clerk of each circuit court shall, at the end of each
month, pay into the Regional Jail and Correctional Facility
Authority Fund in the State Treasury an amount equal to forty
dollars of every fee for service received in any criminal case
against any respondent convicted in such court and shall pay an
amount equal to five dollars of every such fee into the Court
Security Fund in the State Treasury established pursuant to the
provisions of section fourteen, article three, chapter fifty-one of
this code.
(f) Beginning the first day of January, two thousand two, the
The clerk of the circuit court shall, at the end of each month, pay
into the Medical Liability Fund established under article twelve-b,
chapter twenty-nine of this code, an amount equal to one hundred
sixty-five dollars of every filing fee received for instituting a
medical professional liability action.
(g) The clerk of the circuit court shall, at the end of each
month, pay into the Courthouse Facilities Improvement Fund created
by section six, article twenty-six, chapter twenty-nine of this
code, those amounts received by the clerk which are dedicated for
deposit in the Fund.
(h) The clerk of each circuit court shall, at the end of each month, pay into the Regional Jail Operations Partial Reimbursement
Fund established in the State Treasury pursuant to the provisions
of section ten-b, article twenty, chapter thirty-one of this code,
those amounts received by the clerk which are dedicated for deposit
in the fund.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 716--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §31-20-10b; to amend and reenact §50-3-1, §50-
3-2 and §50-3-4a of said code; and to amend and reenact §59-1-11
and §59-1-28a of said code, all relating to creating the Regional
Jail Operations Partial Reimbursement Fund; calculation of
reimbursement to counties and municipalities; providing duties of
the State Treasurer; requiring report from the Regional Jail and
Correctional Facility Authority; setting date for first
reimbursement; and increasing court costs for criminal and civil
proceedings.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 716, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 716) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 716) takes effect July 1, 2005.
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 concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 736, Repealing superceded sections
relating to proffers and conditions for final plat approval.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 749, Authorizing change in official name
of public service district in certain cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 751, Making supplementary appropriation
to Department of Transportation, Division of Motor Vehicles.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 34, Requesting Division of
Highways name bridge on Route 13, Raleigh County, "Sergeant Billy
Ray Holmes Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 2150, Expanding the possible venues where
a child neglect or abuse petition may be filed.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2417, Relating to compressed
gas container safe transport.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, to take effect from passage, and requested the
concurrence of the Senate in the House of Delegates amendments to
the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2669, Authorizing
miscellaneous boards and agencies to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page eleven, section nine, subdivision 5.3.a., after the
word "license" by striking out the comma and the words "be at least 62 years of age,";
And,
On page eleven, section nine, subdivision 5.3.b., by striking
out the words "for a period of up to one year, ending on June 30".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2669, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 H. B. No. 2669) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2669) takes effect from passage.
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 adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 49--Opposing the further
designation of additional federal wilderness acreage within the
Monongahela National Forest in the State of West Virginia and
requesting the United States Department of Agriculture (USDA)
Forest Service to consider fully the many values of active,
professionally managed forests during the revision of the
Monongahela National Forest Land and Resource Management Plan; and
further requesting that the Forest Service implement a spatial
reapportionment of management areas in the Monongahela National Forest to increase acreage available for active vegetation and
timber management.
Whereas, The health, economic well-being and cultural
traditions of West Virginia's citizens have historically been and
continue to be dependent upon the wealth of natural resources
provided by the working forests within the State; and
Whereas, The natural resources of the State of West Virginia,
particularly its timber resources, are immovable, permanent,
renewable assets belonging to the people of West Virginia; and
Whereas, Local municipalities and other public jurisdictions
in West Virginia have had their educational, public safety and
transportation infrastructure deprived of timber revenue
payments-in-lieu totaling hundreds of millions of dollars due to
the unwarranted actions of political activists dedicated to forest
abandonment; and
Whereas, Federal wilderness designation by the United States
Congress is a permanent, irrevocable condition that will forever
deprive West Virginians and the nonresident visiting public of
nearly all economically productive uses and reasonable access to
recreational opportunities in the Monongahela National Forest; and
Whereas, The majority of our documented aging population that
seeks reasonable access to Monongahela National Forest lands for
recreation would be denied such reasonable access by the various mandates of federal wilderness designation which discriminate in
favor of those of greater youth and vitality; and
Whereas, Professionally prescribed active timber management
supplies an important source of sustainable, God-given renewable
raw materials for West Virginia's forest-based industries and rural
manufacturing economies; and
Whereas, Congressional designation of additional federal
wilderness acreage in the Monongahela National Forest would replace
scientifically justified natural resource management with an
unfounded philosophical ideology of forest abandonment on more of
West Virginia's rural working landscape to the detriment of West
Virginians, their forests and the wildlife resources held in trust
by the State of West Virginia for its people; and
Whereas, Imposing additional wilderness would diminish the
biological diversity of the Monongahela National Forests wildlife
habitat types due to the prohibition of all wildlife habitat and
timber management and would eliminate the opportunity to seek to
perpetuate the best quality and combination of wildlife habitats;
and
Whereas, Designation of additional Monongahela National Forest
acreage to management prescriptions 3.0 and 6.1 will facilitate the
application of critically needed professional forest management
toward attaining the scientifically accepted ideal of 15 percent of the forested landscape in young forest, early successional wildlife
habitats (0-10 years old); and
Whereas, The State of West Virginia Division of Natural
Resources is charged by the people of West Virginia to protect and
conserve our fish and wildlife using sound scientific principles
inherent in active wildlife management practices, including those
existing within the proclamation boundaries of the Monongahela
National Forest, including that acreage either currently designated
or proposed as federal wilderness; and
Whereas, Compelling peer-reviewed and widely accepted
scientific evidence documents that:
1. Some of the most interesting and diverse natural
communities in eastern North America will be lost without active
forest management;
2. Providing habitat for the greatest diversity of wildlife
species over the long term involves purposefully managing for a
mosaic of forest conditions; and
3. Providing both young and mature forest habitat through
forest management contributes to the biological diversity of the
forested landscape; and
Whereas, The designation of additional federal wilderness
acreage in the Monongahela National Forest will impose unreasonable
barriers to recreational opportunities for disabled, handicapped and physically impaired West Virginians and nonresident visitors to
West Virginia; and
Whereas, The honorable governing bodies and economic
development authorities of the counties of Grant, Pendleton,
Pocahontas, Randolph and Tucker, each of which encompasses some
portion of Monongahela National Forest lands, have formally and
publicly opposed the designation of additional federal wilderness
acreage in the Monongahela National Forest; and
Whereas, The West Virginia Legislature is bound by Article II,
2-1 of the West Virginia Constitution to recognize that the powers
of government reside in all the citizens of the State and can be
rightfully exercised only in accordance with their will and
appointment; therefore, be it
Resolved by the Legislature of West Virginia:
That the West Virginia Legislature requests that the United
States Department of Agriculture Forest Service, in developing
proposed alternatives for the Monongahela National Forest Plan
Revision, consider fully the many values of well-managed forests to
the State of West Virginia; and, be it
Further Resolved, That the Legislature recognizes that any
expansion of federal wilderness and/or the imposition of any other
unreasonably restrictive land management measures would result in
losses in recreational opportunity and severe economic harm to far more West Virginians than would be benefited; and, be it
Further Resolved, That the Clerk of the House of Delegates is
hereby directed to send a copy of this resolution to the Honorable
Nick J. Rahall II, the Honorable Alan B. Mollohan and the Honorable
Shelley Moore Capito, Representatives of the State of West Virginia
in the United States Congress; the Honorable Robert C. Byrd and the
Honorable John D. Rockefeller IV, Senators for the State of West
Virginia in the United States Congress; the Honorable Joe Manchin
III, Governor of the State of West Virginia, Clyde Thompson,
Supervisor of the Monongahela National Forest, and to the county
commissions of each county with land in the Monongahela National
Forest.
Referred to the Committee on Natural Resources.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 75--Requesting the Joint
Committee on Government and Finance study the conundrum presented
by a conflict between the statutory standards and requirements
governing the practice of medicine and related health care
occupations and underwriting guidelines governing the issuance of
medical professional liability insurance policies.
Whereas, There is a need to ensure the availability of health care for the citizens of this state; and
Whereas, Nurse practitioners, physicians assistants and nurse
anesthetists are critical to providing care to West Virginians; and
Whereas, The scope of practice of all health care providers is
set forth in code; and
Whereas, Physicians utilizing nurse practitioners and
physician assistants are required to have collaborative agreements
in place intended to enhance the availability of care; and
Whereas, Restricting the scope of practice of mid-level health
care providers could negatively impact the availability of health
care in this state, especially in the rural areas; and
Whereas, An underwriting guideline requiring that a physician
be on site at all times a mid-level practitioner sees patients
conflicts with the statutory scope of practice of mid-level
practitioners and limits the availability of care; and
Whereas, The availability and affordability of medical
malpractice insurance is also important to continued access to
care; and
Whereas, Underwriting guidelines address the risks associated
with insured activity and provide the basis for the cost of
insuring against the risk; and
Whereas, Underwriting guidelines that restrict the lawful
practice of mid-level health care providers can result in reduced access to health care for patients in this state; and
Whereas, The Legislature needs to ensure access to health care
and access to affordable medical malpractice insurance; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study the
statutory standards and requirements governing the practice of mid-
level health care occupations and the underwriting guidelines
governing the issuance of medical professional liability insurance
policies to these professionals to resolve any conflicts between
the two which affects the State's ability to provide health care to
its citizens; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report on its findings, conclusions and recommendations,
together with drafts of any legislation necessary to effectuate its
recommendations to the next regular session of the Legislature;
and, be it
Further Resolved, That the expenses necessary to carry out its
duties, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 83--Requesting the Secondary
School Activities Commission to consider a rule amendment to
provide at least two classes of competition in the end-of-season
interscholastic tournaments for soccer, swimming and others as
practicable.
Whereas, Under its current rules, the Commission may sponsor
a state tournament for recognized team sports in which at least 21
schools participate and for recognized individual sports in which
at least 10 schools sponsor at least the number of individuals
required to permit team scoring; and
Whereas, Up to 50 percent of the member schools may sponsor a
recognized sport and be required to compete against each other in
the state tournament without regard to the size of the schools; and
Whereas, The specter of competing against much larger schools
may dissuade smaller schools from offering their students the
opportunity to participate in some of the less popular sports;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Secondary School Activities Commission be requested
to consider amending its rules to provide at least two classes of
competition in the end-of-season interscholastic tournaments for soccer, swimming and others as practicable; and, be it
Further Resolved, That the said Secondary School Activities
Commission make a report of its consideration of said amendment to
the Legislative Oversight Commission on Education Accountability,
including any findings, conclusions and recommendations, prior to
the beginning of the school year beginning on the first day of
July, 2006.
Referred to the Committee on Education.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 84--Requesting the Joint
Committee on Government and Finance to make a study on the
education enhancement proposals of the West Virginia Department of
Education entitled: West Virginia ACHIEVES (5-year plan);
Mathematics - Our Future, A Five-Year Plan; and Professional
Development Schools (HB 4669); and any other major initiatives
currently being undertaken.
Whereas, Improving student performance is the premier mandate
given the State Board and the Department of Education under a
performance-based system of accountability; and
Whereas, New initiatives addressing various subjects,
employing various methods and committing various resources are undertaken with regularity to improve student performance with
varying levels of coordination, oversight and verifiable success;
and
Whereas, Real improvements in student performance are
dependent upon the capacity of local schools and classroom teachers
to embrace the changes and commit the time and resources to
effectively implement them, all of which are diminished when
multiple initiatives compete for time, attention and resources,
consume the limited time available for staff development, lack the
coordination necessary for efficient delivery and muddle the focus
teaching and learning; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to make a study on the education enhancement proposals of
the West Virginia Department of Education entitled: West Virginia
ACHIEVES (5-year plan); Mathematics - Our Future, A Five-Year Plan;
and Professional Development Schools (HB 4669); and any other major
initiatives currently being undertaken; and, be it
Further Resolved, That the said Joint Committee on Government
and Finance is requested to conduct the study and prepare a report
of its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is requested to report to the regular session of the
Legislature, 2006, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary
to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and draft necessary legislation are
requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
Referred to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 99--Recommending that West
Virginia's national representatives research methods for securing
waivers that would help the state better tailor No Child Left
Behind for West Virginia students.
Whereas, Education has traditionally been a state role and
responsibility; and
Whereas, No two states are identical and no two students are
identical; and
Whereas, Some parts of NCLB are difficult for local boards to
implement; and
Whereas, If they fail to implement these programs, they will
fall out of compliance with NCLB; and
Whereas, Extra pressure may be placed upon students due to the
standardized tests and the impact the scores have on the schools
and the students; and
Whereas, West Virginia would require additional funding in
order to accomplish its requirements; and
Whereas, Some county superintendents have expressed
frustration in trying to comply with regulations that they feel are
unattainable; and
Whereas, NCLB has good intentions and every child should be
given the opportunity to learn at a high level; and
Whereas, NCLB would be more successful in West Virginia if it
were better tailored to the state; and
Whereas, The state needs the ability to be innovative in its
approach to education; and
Whereas, NCLB has caused the focus to be more on what is not
possible for the state to do instead of focusing on making the
system better; and
Whereas, West Virginia is accountable for results and
compliance, but does not have the flexibility it needs to attain
it; therefore, be it
Resolved by the Legislature of West Virginia:
For these reasons, the Legislature hereby requests that West
Virginia's national representatives research methods for securing
waivers that would help the state better tailor NCLB to West
Virginia's needs and increase the state's chance of success; and,
be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to West Virginia's national
representatives.
Referred to the Committee on Education.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor,
submitting the annual probation and parole report, which was
received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
April 8, 2005
Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
In accordance with the provisions of Section 11, Article VII
of the Constitution of the State of West Virginia, and Section 16,
Article 1, Chapter 5 of the Code of West Virginia, I hereby report
that I granted no pardons or reprieves, nor commuted punishment to
any person, and remitted no fines or penalties during the period of
January 17, 2005, through April 8, 2005.
Very truly yours,
Joe Manchin III,
Governor.
Senator Tomblin (Mr. President) then laid before the Senate
the following communication from His Excellency, the Governor,
regarding annual reports, which communication was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
April 8, 2005
Senate Executive Message No. 7
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear President Tomblin:
Pursuant to the provisions of §5-1-20 of the Code of West
Virginia, I hereby certify that, for the period January 17, 2005,
through April 8, 2005, the following 2003-2004 annual reports have
been received in the Office of the Governor:
1.Adjutant General, West Virginia;
2.Coal Heritage Highway Authority and National Coal
Heritage Area Authority;
3.Community and Technical College, West Virginia State;
4.Consolidated Public Retirement Board, West Virginia;
5.Economic Development Authority, West Virginia;
6.Employee Suggestion Award Board, West Virginia
Legislature;
7.Equal Employment Opportunity Office, West Virginia;
8.Interstate Pest Control Compact;
9.Labor, West Virginia Division of;
10.Library Commission, West Virginia;
11.Literacy, Governor's Council on;
12.Medicine, West Virginia Board of, Volumes I and II;
13.National and Community Service, West Virginia Commission
for;
14.Oil and Gas Inspectors' Examining Board, West Virginia;
15.Optometry, West Virginia Board of;
16.Parole Board, West Virginia;
17.Personnel, West Virginia Division of;
18.Professional Surveyors, West Virginia Board of;
19.Real Estate Appraiser Licensing and Certification Board,
West Virginia;
20.Real Estate Commission, West Virginia;
21.Rehabilitation Services, West Virginia Division of;
22.Social Work Examiners, West Virginia Board of;
23.State Police, West Virginia;
24.Support Enforcement Commission, West Virginia;
25.Veterinary Medicine, West Virginia Board of;
26.Water Development Authority, West Virginia.
Very truly yours,
Joe Manchin III,
Governor.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 12:30 p.m. today:
Eng. Com. Sub. for House Bill No. 2492, Providing a funding
mechanism for teen court programs.
Senator Edgell, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 717, Permitting Wetzel County Hospital provide alternate retirement plan for new
employees.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Committee
Substitute for Senate Bill No. 717 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting section, and agree to the same as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires or dies, he
or she ceases to be a member. When a member leaves the employ of
a participating public employer for any other reason, he or she
ceases to be a member and forfeits service credited to him or her
at that time. If he or she becomes reemployed by a participating
public employer, he or she shall be reinstated as a member of the
retirement system and his or her credited service last forfeited by
him or her shall be restored to his or her credit: Provided, That
he or she must be reemployed for a period of one year or longer to
have the service restored: Provided, however, That he or she returns to the members' deposit fund the amount, if any, he or she
withdrew from the fund, together with regular interest on the
withdrawn amount from the date of withdrawal to the date of
repayment, and that the repayment begins within two years of the
return to employment and that the full amount is repaid within five
years of the return to employment.
(b) The Prestera Center for Mental Health Services, Valley
Comprehensive Mental Health Center, Westbrook Health Services and
Eastern Panhandle Mental Health Center, and their successors in
interest, shall provide for their employees a pension plan in lieu
of the Public Employees Retirement System during the existence of
the named mental health centers and their successors in interest.
(c) The administrative bodies of the Prestera Center for
Mental Health Services, Valley Comprehensive Mental Health Center,
Westbrook Health Services and Eastern Panhandle Mental Health
Center shall, on or before the first day of May, one thousand nine
hundred ninety-seven, give written notice to each employee who is
a member of the Public Employees Retirement System of the option to
withdraw from or remain in the system. The notice shall include a
copy of this section and a statement explaining the member's
options regarding membership. The notice shall include a statement
in plain language giving a full explanation and actuarial
projection figures in support of the explanation regarding the individual member's current account balance, vested and nonvested,
and his or her projected return upon remaining in the Public
Employees Retirement System until retirement, disability or death,
in comparison with the projected return upon withdrawing from the
Public Employees Retirement System and joining a private pension
plan provided by the Community Mental Health Center and remaining
therein until retirement, disability or death. The administrative
bodies shall keep in their respective records a permanent record of
each employee's signature confirming receipt of the notice.
(d) Effective the first day of March, two thousand three, and
ending the thirty-first day of December, two thousand four, any
member may purchase credited service previously forfeited by him or
her and the credited service shall be restored to his or her
credit: Provided, That he or she returns to the members' deposit
fund the amount, if any, he or she withdrew from the fund, together
with interest on the withdrawn amount from the date of withdrawal
to the date of repayment at a rate to be determined by the Board.
The repayment under this section may be made by lump sum or repaid
over a period of time not to exceed sixty months. Where the member
elects to repay the required amount other than by lump sum, the
member is required to pay interest at the rate determined by the
Board until all sums are fully repaid.
(e) Effective the first day of July, two thousand five, and ending the thirty-first day of December, two thousand six, any
emergency services personnel may purchase service credit for the
time period beginning the first day of January, one thousand nine
hundred ninety, and ending the thirty-first day of December, one
thousand nine hundred ninety-five: Provided, That person was
employed as an emergency service person in this state for that time
period: Provided, however, That any person obtaining service
credit under this subsection is required to pay the employee's
share and the employer's share upon his or her actual salary for
the years in question plus interest at the assumed actuarial rate
of return for the plan year being repurchased.
(f) Jobs for West Virginia's Graduates and their successors in
interest shall provide a pension plan in lieu of the Public
Employees Retirement System for employees hired on or after the
first day of July, two thousand five.
(g) Wetzel County Hospital and their successors in interest
shall provide a pension plan in lieu of the Public Employees
Retirement System for employees hired on or after the first day of
July, two thousand five.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for Senate Bill No. 717--A Bill to amend and reenact §5-10-18 of the Code of West Virginia, 1931, as amended,
relating to permitting Wetzel County Hospital and Jobs for West
Virginia's Graduates, respectively, to provide an alternative
retirement plan for new employees in lieu of participation in the
Public Employees Retirement System; establishing date; permitting
emergency services personnel to purchase service credit for the
years one thousand nine hundred ninety to one thousand nine hundred
ninety-five; specifying the cost of the service credit; specifying
interest rate; and setting forth a limited time period for
emergency services personnel to make the purchase.
Respectfully Submitted,
Larry J. Edgell, Chair, Dan Foster, Clark S. Barnes, Conferees
on the part of the Senate.
Doug Stalnaker, Chair, Richard Browning, Walter E. Duke,
Conferees on the part of the House of Delegates.
Senator Edgell, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Edgell, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 717, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 717) passed with its conference amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 717) 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 sixth order of business, which
agenda includes the making of main motions.
On motion of Senator Sprouse, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for Senate Bill No. 700, Creating Community
Infrastructure Investment Program within Department of Commerce.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Sprouse, the Senate reconsidered the vote
as to the passage of the bill.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas
were: Bailey, Barnes, Boley, Bowman, Dempsey, Edgell, Facemyer,
Fanning, Foster, Harrison, Helmick, Jenkins, Kessler, Lanham,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Weeks and Tomblin (Mr. President)--24.
The nays were: Caruth, Chafin, Deem, Guills, Hunter, Love,
Sprouse, Unger, White and Yoder--10.
Absent: None.
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. 700) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senators Unger, Helmick and Yoder offered the following
resolution:
Senate Concurrent Resolution No. 104--Requesting the Joint
Committee on Government and Finance study the relocation of the
MARC Train Layover Facility in Martinsburg, Berkeley County, to
Hancock, Morgan County, in an effort to promote economic
development and improve accessibility of intermodal transportation
for surrounding populace in the State of West Virginia.
Whereas, Efficient and affordable intermodal passenger
transportation has emerged as an essential element to the economic
growth of a community; and
Whereas, Providing appropriate accessibility for an intermodal
transportation center for passenger rail service, flight service
and ground transportation requires adequate space, track
availability and access to existing transportation infrastructure;
and
Whereas, Hancock, Morgan County, offers access and opportunity
for development of an intermodal transportation center with an
unimpeded flow of commerce and collaboration between the State of
West Virginia and contiguous states; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the relocation of the MARC Train Layover
Facility in Martinsburg, Berkeley County, to Hancock, Morgan
County, in an effort to promote economic development and improve
accessibility of intermodal transportation for surrounding populace
in the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the costs associated with
the relocation of the MARC Train Layover Facility from Martinsburg,
Berkeley County, to Hancock, Morgan County, including, but not
limited to, the initial capital, operational and maintenance costs
in relation to current costs and future economic growth; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the benefits and
opportunities of an intermodal transportation center, including,
but not limited to, estimated ridership potential, extended
commuter market and shared costs of operation and maintenance
resulting form active collaboration with and among the State of
West Virginia and the District of Columbia, the State of Maryland,
and the Commonwealths of Pennsylvania and Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of infrastructure development and improvement projects in conjunction with an
intermodal passenger transportation center in Hancock, Morgan
County; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senator Chafin offered the following resolution:
Senate Concurrent Resolution No. 105--Requesting the Division
of Highways name the bridge that intersects with Farley Avenue in
Delbarton, Mingo County, the "Dr. J. R. 'Bob' Farley Memorial
Bridge".
Whereas, Dr. J. R. "Bob" Farley was born on March 24, 1902, in
Delbarton, Mingo County, the son of the late James A. and Mary Farley; and
Whereas, Dr. Farley was educated in the public schools in
Mingo County where he was a member of the Burch High School
basketball team; and
Whereas, Dr. Farley graduated from the College of Dentistry at
the University of Louisville in 1927 and returned to his native
Delbarton where he practiced dentistry for 43 years; and
Whereas, Dr. Farley was community-spirited and civic-minded,
serving on a plethora of community-based organizations, including
as the Chairman of the Delbarton Volunteer Fire Department, the
President of the Delbarton Kiwanis Club, the PTA President in
Delbarton, the President of the Burch High School Band Boosters and
a member of the Tug Valley Chamber of Commerce; and
Whereas, Dr. Farley, a lifelong Democrat, was a successful
political figure, further serving his community variously as a
member of the Mingo County Board of Education, Mayor of Delbarton
and Mingo County Commissioner; and
Whereas, Dr. Farley passed away on April 26, 1970, leaving
behind his three children, Lohoma Lee Schuler, Rebecca Jean O'Dell
and James David Farley; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the
bridge that intersects with Farley Avenue in Delbarton, Mingo County, the "Dr. J. R. 'Bob' Farley Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby
requested to have made and be placed signs identifying the bridge
as the "Dr. J. R. 'Bob' Farley Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the family of the
late Dr. J. R. "Bob" Farley, in care of David Farley.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to
the Committee on Transportation and Infrastructure.
Senator Yoder offered the following resolution:
Senate Concurrent Resolution No. 106--Requesting the Joint
Committee on Government and Finance study repealing the Local
Powers Act and replacing it with legislation giving counties more
flexibility in meeting county-level demands.
Whereas, It is the purpose of the Local Powers Act to provide
for the fair distribution of costs for county development by
authorizing the assessment and collection of fees to offset the
cost of commercial and residential development within affected
counties; and
Whereas, The Act is outdated and too restrictive for the needs
of counties in different geographical areas of this state; and
Whereas, Instead of improving the ability of counties to meet
the needs of its citizens, the Act has restricted their ability to
meet modern demands for planning and providing services; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study repealing the Local Powers Act and replacing it
with legislation giving counties more flexibility in meeting
county-level demands; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senators Prezioso, Oliverio, Hunter, Minear, Kessler, Minard, Edgell, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the
following resolution:
Senate Resolution No. 43--Congratulating the West Virginia
University men's basketball team on its participation in the Elite
Eight in the men's 2005 NCAA basketball tournament.
Whereas, The West Virginia University men's basketball team
captured the hearts and imaginations of the citizens of West
Virginia with its run to the Elite Eight in the 2005 NCAA
tournament; and
Whereas, The West Virginia University men's basketball team
beat eight nationally ranked teams on its unbelievable NCAA
tournament journey; and
Whereas, Not since 1959 has the men's basketball program at
West Virginia University created such a furor and caused state
pride to intensify; and
Whereas, The coaching staff of the West Virginia University
men's basketball team, under the command of Head Coach John Beilein
and assistant coaches Jeff Neubauer, Jerry Dunn and Matt Brown, is
commended for its outstanding leadership ability; and
Whereas, The members of the West Virginia University men's
basketball team, consisting of Patrick Beilein, Luke Bonner, Brad
Byerson, J. D. Collins, D'or Fischer, Mike Gansey, Johannes Herber,
Darris Nichols, Kevin Pittsnogle, Duriel Price, Tyrone Sally, Ted Talkington and Frank Young, are commended for their outstanding
athletic ability, team spirit and sportsmanship; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the West Virginia
University men's basketball team on its participation in the Elite
Eight in the men's 2005 NCAA basketball tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the West Virginia University men's
basketball team.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senators Prezioso, Oliverio, Hunter, Minear, Edgell, Kessler,
Minard, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the
following resolution:
Senate Resolution No. 44--Congratulating the West Virginia
University women's basketball team on reaching the championship
game of the 2005 Women's National Invitation Tournament.
Whereas, The West Virginia University women's basketball team
exceeded all expectations by reaching the championship game of the
WNIT tournament; and
Whereas, The team produced back-to-back 20-win seasons for the
first time in WVU history; and
Whereas, The coaching staff of the West Virginia University
women's basketball team, under the guidance of Head Coach Mike
Carey and assistant coaches Cindy Martin, Sharrona Reaves and
Chester Nichols, is commended for its outstanding leadership
ability; and
Whereas, The members of the West Virginia University women's
basketball team, consisting of LaQuanda Brandon, Meg Bulger, Becca
Cline, Chakhia Cole, Kate Glusko, Kristin Heminger, Jeriece Lee,
Yelena Leuchanka, Ramkia McGee, LaQuita Owens, Yolanda Paige, Amber
Robinson, Olayinka Sanni and Sherell Sowho, are commended for their
outstanding athletic ability, team spirit and sportsmanship;
therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the West Virginia
University women's basketball team on reaching the championship
game of the 2005 Women's National Invitation Tournament; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the West Virginia University women's
basketball team.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senators Prezioso, Oliverio, Hunter, Minear, Kessler, Edgell, Minard, Dempsey, Jenkins, Sprouse, Bowman and McCabe offered the
following resolution:
Senate Resolution No. 45--Congratulating West Virginia
University wrestler Greg Jones on winning three national
championship titles and being named NCAA Most Outstanding Wrestler
of 2005.
Whereas, Greg Jones, a senior at West Virginia University,
finished his collegiate career with a 51-match winning streak and
back-to-back undefeated seasons and will leave WVU with a career
record of 126-4; and
Whereas, Greg Jones became just the 39th wrestler in NCAA
history to win three national championship titles. He was also
named the NCAA tournament's Most Outstanding Wrestler, the first
Eastern Wrestlers League member ever; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates West Virginia University
wrestler Greg Jones on winning three national championship titles
and being named NCAA Most Outstanding Wrestler of 2005; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to West Virginia University wrestler Greg
Jones.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
At the request of Senator Unger, unanimous consent being
granted, Senators Tomblin (Mr. President) and Unger offered the
following resolution from the floor:
Senate Concurrent Resolution No. 107--Requesting the Joint
Committee on Government and Finance study the state's technology
infrastructure and economic development opportunities with the
advancement of digital communications, broadband, wireless
communications and the internet in the State of West Virginia.
Whereas, The internet revolution is driving today's economy
and information technology offers increased economic opportunities,
higher living standards, more individual choices and wider and more
meaningful participation in government and public life; and
Whereas, The ability of people in all parts of this state to
have affordable access to the internet is an important component in
the ability of the state and its people and institutions to remain
competitive in the information-based global economy; and
Whereas, Access to the internet will complement the learning
experiences of children in rural areas by giving them a window to
the world and allowing them to gather data from the information
superhighway which would not otherwise be available to them; and
Whereas, Internet access will give rural medical clinics a
direct connection to medical experts in this state and throughout this country; and
Whereas, The educational, medical, cultural and economic
benefits of the internet are useless to people and businesses who
are neither connected to nor able to access the information
superhighway; and
Whereas, The efficient and comprehensive development of
technology infrastructure, and the resulting benefits of
accessibility to advanced information services and the internet,
are linked to the coordinated ubiquitous deployment and operation
of information systems, information technology, information
equipment and telecommunications systems; and
Whereas, The management, goals and purposes of government are
furthered by the completion of an inventory of information systems,
information technology, information equipment, telecommunications-
related services and systems and general technology infrastructure
and linked information systems across government; and
Whereas, Technology infrastructure supports homeland security
and public safety; and
Whereas, In West Virginia and nationwide, local governments
are considering ways to promote broadband networks in their
communities for the purposes of homeland security, public safety
and economic development; and
Whereas, Local government efforts are intended to complement wirelines and cable networks; and
Whereas, Technology infrastructure is essential to business
and economic development within the state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the state's technology infrastructure and
economic development opportunities with the advancement of digital
communications, broadband, wireless communications and the internet
in the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include the process of developing an inventory of
the statewide operation of information systems, information
technology, information equipment and telecommunications-related
services and systems; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study examine the economic benefits to the state by the
ubiquitous deployment of technology infrastructure and the process
of developing an innovation center to coordinate research and
development efforts throughout the state and to build sustainable
communities through affordable technology infrastructure; and, be
it
Further Resolved, That the Joint Committee on Government and
Finance's study examine the benefits of technology infrastructure in promoting economic development, providing homeland security,
providing continuity of government operations and promoting public
welfare; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study examine the kind of technology infrastructure,
including wireless communications, necessary for widespread growth
and development and identify where technology is severely lacking;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study examine intergovernmental cooperation and public-
private partnerships as effective methods to approach common
development and ubiquitous deployment of technology infrastructure
and services and the most effective use of local, state, federal
and private resources; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 108 (originating in the
Committee on the Judiciary)--Requesting the Joint Committee on
Government and Finance study criminal laws of West Virginia for
efficacy and consistency, including, but not limited to, possibly
establishing drug weight thresholds, alternative sentencing,
indeterminate sentences, community corrections, home confinement
programs, work release programs, early release under specific
circumstances, recidivism, presumptive parole and any other issue
affecting overpopulation of West Virginia's jails and prisons.
Whereas, The criminal statutes of this state have not been
reviewed collectively or updated in many years; and
Whereas, A need exists to expand and utilize community
corrections, work release programs, home confinement programs and
alternative sentencing and to alleviate jail overpopulation; and
Whereas, The aging inmate population requires additional
medical costs, thereby increasing the burden on the taxpayers of
West Virginia; and
Whereas, Representatives of the Parole Board, the judiciary,
prosecutors, law enforcement, regional jails and prisons must work
together on these issues to alleviate such overpopulation;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study criminal laws of West Virginia for efficacy and
consistency, including, but not limited to, possibly establishing
drug weight thresholds, alternative sentencing, indeterminate
sentences, community corrections, home confinement programs, work
release programs, early release under specific circumstances,
recidivism, presumptive parole and any other issue affecting
overpopulation of West Virginia's jails and prisons; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the resolution (S. C. R. No. 108) contained in the
preceding report from the Committee on the Judiciary was taken up
for immediate consideration.
On motion of Senator Kessler, the resolution was referred to
the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 109 (originating in the
Committee on the Judiciary)--Requesting the Joint Committee on
Government and Finance study the need for providing training to
persons selling and serving alcohol to the public.
Whereas, Service staff require education on recognizing
underage patrons, intoxication indicators and other commonly
encountered issues related to the selling and serving of alcohol; and
Whereas, The failure to educate service staff may impose
liability on the retailers, bar and restaurant owners and employees
and endanger the public; and
Whereas, Much can be gained by bringing together knowledgeable
persons and agencies, including, but not limited to, the Alcohol
Beverage Control Commission, representatives of the retail industry
and representatives of the food and beverage industry; and
Whereas, The Legislature should explore the possibility of
developing an educational program to address these issues;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the need for providing training to persons
selling and serving alcohol to the public; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the resolution (S. C. R. No. 109) contained in the
preceding report from the Committee on the Judiciary was taken up
for immediate consideration.
On motion of Senator Kessler, the resolution was referred to
the Committee on Rules.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 110 (originating in the
Committee on Government Organization)--Requesting the Joint
Committee on Government and Finance study annexation issues in
Jefferson County
.
Whereas,
The population of Jefferson County
is growing and
the
need for housing, schools and other facilities is great
; and
Whereas, Jefferson County
has countywide zoning,
has
adopted the Local Powers Act and is developing unincorporated land at an
extremely fast rate; and
Whereas,
Annexation of unincorporated land
by municipalities
has become a contentious subject in Jefferson County;
therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study annexation issues in Jefferson County
; and, be
it
Further Resolved,
That the Joint Committee on Government and
Finance develop possible annexing procedures for Jefferson County
;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the resolution (S. C. R. No. 110) contained in the
preceding report from the Committee on Government Organization was
taken up for immediate consideration.
On motion of Senator Bowman, the resolution was referred to
the Committee on Rules.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 111 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the duties, responsibilities and
authority of public school principals and assistant principals.
Whereas, The leadership provided by principals and assistant
principals is one of the most important factors in determining
student achievement; and
Whereas, Principals and assistant principals require time to
provide the quality of leadership needed to improve student
achievement; and
Whereas, Principals and assistant principals need a certain degree of control and authority in order to provide the quality of
leadership needed to improve student achievement; and
Whereas, Concern has been expressed over whether or not
principals and assistant principals have sufficient authority to
provide effective leadership; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the duties, responsibilities and authority of
public school principals and assistant principals; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the resolution (S. C. R. No. 111) contained in the
preceding report from the Committee on Education was taken up for
immediate consideration.
On motion of Senator Plymale, the resolution was referred to
the Committee on Rules.
Senator Unger, from the Committee on Transportation and
Infrastructure
, submitted the following report, which was received:
Your Committee on
Transportation and Infrastructure
has had
under consideration
Senate Concurrent Resolution No. 112 (originating in the
Committee on
Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance study regulations related
to impounded or towed motor vehicles released to a third party.
Whereas, The State of West Virginia requires insurance,
license registration and the inspection of motor vehicles to ensure
the utmost safety and confidence in the operation of motor
vehicles; and
Whereas, The unexamined release of a motor vehicle to a third
party of a towed, wrecked, disabled or impounded motor vehicle
raises a serious concern as to each vehicle's operability,
registration, insurance and compliance with state law; and
Whereas, Impounded or towed motor vehicles may be found to be noncompliant with insurance, inspection or registration regulations
or otherwise deemed inoperable during the time of impoundment and
no requirement exists for the impound facility or towing operator
to check such upon release of the motor vehicle to a third party,
which presents a potential danger to the public; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study regulations related to impounded or towed motor
vehicles released to a third party; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of the regulations to ensure
the release of a motor vehicle which has been towed or impounded
only occurs if such motor vehicle or operator is in compliance with
state regulations regarding insurance, inspection and registration;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination of insurance rates
pertaining to such motor vehicles; and, be it
Further Resolved, That the Joint Committee on Government and
Finance's study include an examination that these issues would have
on traffic safety in the State of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, the resolution (S. C. R. No. 112) contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
On motion of Senator Unger, the resolution was referred to the
Committee on Rules.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Resolution No. 46 (originating in the Committee on the
Judiciary)--
Urging United States Congress review provisions in the federal PATRIOT Act.
Whereas, The devastating attacks of September 11, 2001, in the
United States, and the national patriotic response thereto, have
resulted in a need for reaffirmation of the American way of life;
and
Whereas, The potential for excessive restriction of civil
liberties by the United States government gives reason for a
renewed reflection upon the founding principles of the United
States of America and the State of West Virginia; and
Whereas, The Constitution of the State of West Virginia,
Article I, Section 3, asserts:
"The provisions of the Constitution of the United States, and
of this State, are operative alike in a period of war as in time of
peace, and any departure therefrom, or violation thereof, under
plea of necessity, or any other plea, is subversive of good
government, and tends to anarchy and despotism."; and
Whereas, The prevention of future terrorist attacks is a
critical national priority, but it is also important to preserve
the fundamental civil liberties and personal freedoms which were
enshrined in the Bill of Rights over 200 years ago; therefore, be
it
Resolved by the Senate:
That the Senate hereby urges the United States Congress review provisions in the federal PATRIOT Act; and, be it
Further Resolved, That the Senate hereby opposes federal
legislation to the extent that it infringes on civil rights and
liberties; and, be it
Further Resolved, That the Senate urges the President of the
United States and members of the executive branch to review, revise
or rescind executive orders and policies which have been adopted
since September 11, 2001, which deprive citizens or residents of
liberties guaranteed by the Bill of Rights; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the Secretary of the United States
Senate, the Clerk of the United States House of Representatives,
President George W. Bush, Attorney General Alberto Gonzales and
West Virginia's congressional delegation.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler requested unanimous consent that the
resolution (S. R. No. 46) contained in the preceding report from
the Committee on the Judiciary be taken up for immediate
consideration.
Which consent was not granted, Senator Weeks objecting.
On motion of Senator Kessler, the resolution (S. R. No. 46)
contained in the preceding report from the Committee on the
Judiciary was taken up for immediate consideration.
The question being on the adoption of the resolution, and on
this question, Senator Weeks demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Barnes, Bowman,
Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio,
Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr.
President)--25.
The nays were: Boley, Caruth, Facemyer, Guills, Harrison,
Lanham, Minear, Sprouse and Weeks--9.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared the resolution (S. R. No. 46)
adopted.
The Senate again proceeded to the sixth order of business.
At the request of Senator Prezioso, unanimous consent being
granted, Senators Prezioso and Foster offered the following
resolution from the floor:
Senate Concurrent Resolution No. 113--Requesting the Joint
Committee on Government and Finance direct the Legislative Oversight Commission on Health and Human Resources Accountability
study the effectiveness of medical interventions at the end of life
and at other times.
Whereas, The application of medical science and technology has
the ability to prolong the dying process almost indefinitely and,
in some cases, with attendant pain and suffering; and
Whereas, Most West Virginians would prefer to live a shorter
period of time rather than undergo pain and suffering involved with
being kept alive artificially; and
Whereas, Certain medical procedures administered in hospitals
and nursing homes, such as cardiopulmonary resuscitation, have been
shown to rarely result in prolonged survival in persons with
chronic illness in whom death is expected, but yet can
significantly increase pain and suffering; and
Whereas, The per capita age of the citizens of the State of
West Virginia is currently the highest in the nation and those
individuals are most deserving to be recipients of effective
medical care; and
Whereas, The issues related to medical decisionmaking,
allocation of resources and attendant consequences are matters of
important public policy in this state; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the Legislative Oversight Commission on Health
and Human Resources Accountability study the effectiveness of
medical interventions at the end of life and at other times; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations from the Joint Committee on
Government and Finance.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution was taken up for immediate consideration.
On motion of Senator Prezioso, the resolution was referred to
the Committee on Rules.
At the request of Senator White, unanimous consent being
granted, Senators White and Love offered the following resolution
from the floor:
Senate Resolution No. 47--Honoring Jim Fitzpatrick on his
receipt of the prestigious Jefferson Award for public service.
Whereas, Jim Fitzpatrick was primarily responsible for obtaining necessary funds for projects benefiting the citizens of
Richwood and Nicholas County, including obtaining a much needed new
boiler for the local hospital, a new roof for the Starting Points
Center and organizing the Convention and Visitors Bureau; and
Whereas, Jim Fitzpatrick actively supports many community
groups and entities involved in improving the community. He serves
on the advisory committee to the 4-C Economic Development
Authority; City of Richwood's Mayor's Advisory Committee; Director
of the Nicholas County Starting Points program; Vice
President-Director of the Richwood Convention and Visitors Bureau;
Committee Member of the Richwood Lake Project; Director of the
Cranberry Tri-Rivers Rail Trail; Member of the Richwood Chamber of
Commerce; Member of the Board of Trustees of the Richwood Area
Community Hospital; Chairman and Director of the Richwood City
Building Commission; Committee Member of World Servants; and
Director of the Cherry River Festival; and
Whereas, As a volunteer giving of his time to make his
community a better place and helping to improve the lives of many
people, Jim Fitzpatrick exemplifies the finest traits of service as
a citizen of his community and this state and is certainly
deserving of receiving the prestigious Jefferson Award established
by former first lady Jacqueline Kennedy Onassis; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Jim Fitzpatrick on his receipt
of the prestigious Jefferson Award for public service; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Jim Fitzpatrick, the Mayor of the City
of Richwood and the members of the Nicholas County Commission.
At the request of Senator White, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 752 (originating in the Committee on Finance)-
-A Bill making a supplementary appropriation of federal funds out
of the Treasury from the balance of federal moneys remaining
unappropriated for the fiscal year ending the thirtieth day of
June, two thousand five, to the Department of Environmental
Protection - Division of Environmental Protection, fund 8708,
fiscal year 2005, organization 0313, all supplementing and amending
the appropriation for the fiscal year ending the thirtieth day of
June, two thousand five.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (S. B. No. 752) contained in the preceding report
from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule,
the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to engrossment and
third reading.
Engrossed Senate Bill No. 752 was then read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 752) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 752) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 80, Requesting Joint
Committee on Government and Finance study State Board of Landscape
Architects.
Senate Concurrent Resolution No. 91, Requesting Joint
Committee on Government and Finance direct Legislative Oversight
Commission on Health and Human Resources Accountability study
availability and distribution of long-term care beds in state.
And,
Com. Sub. for House Concurrent Resolution No. 79, Requesting
that the Joint Committee on Government and Finance study the
increasing drug problem in West Virginia.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 80 contained in the preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 91 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Committee Substitute for House Concurrent Resolution No.
79 contained in the preceding report from the Committee on Rules
was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2011, Relieving health care
providers of liability where an injury has resulted from a
prescribed drug or medical device.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2011) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill (Eng. Com. Sub. for H. B. No. 2011) was then read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Prescription drugs and medical devices; limiting health
care providers' liability exposure.
(a) No health care provider, as defined in section two,
article seven-b of this chapter, is liable to a patient or third
party for injuries sustained as a result of the ingestion of a
prescription drug or use of a medical device that was prescribed or
used by the health care provider in accordance with instructions
approved by the U. S. Food and Drug Administration regarding the
dosage and administration of the drug, the indications for which
the drug should be taken or device should be used and the
contraindications against taking the drug or using the device:
Provided, That the provisions of this section shall not apply if: (1) The health care provider had actual knowledge that the drug or
device was inherently unsafe for the purpose for which it was
prescribed or used; or (2) a manufacturer of such drug or device
publicly announces changes in the dosage or administration of such
drug or changes in contraindications against taking the drug or
using the device and the health care provider fails to follow such
publicly announced changes and such failure proximately caused or
contributed to the plaintiff's injuries or damages.
(b) The provisions of this section are not intended to create
a new cause of action.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2011) was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 2011 pass?"
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2011) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2011--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §55-7-23, relating to removing health care
providers' exposure to liability where, in certain cases involving
prescription drugs and medical devices, a person has been injured;
and exceptions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator McKenzie, and by
unanimous consent, the remarks by Senators Jenkins and Oliverio
regarding the passage of Engrossed Committee Substitute for House
Bill No. 2011
were ordered printed in the Appendix to the Journal.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2186, Restricting involuntary commitment
for addicted persons to those who, as a result of such addiction,
are likely to cause serious harm to themselves or others.
With amendments from the Committee on the Judiciary pending;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was previously referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2186) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill (Eng. H. B. No. 2186) was then read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §27-5-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-2. Institution of proceedings for involuntary custody for
examination; custody; probable cause hearing; examination of
individual.
(a) Any adult person may make an application for involuntary
hospitalization for examination of an individual when the person
making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in
section eleven, article one of this chapter and exhibiting
behaviors set forth in subdivision (1) or (2), subsection (a) of
said section; or
(2) The individual is mentally ill and, because of his or her
mental illness, the individual is likely to cause serious harm to
himself or herself or to others if allowed to remain at liberty while awaiting an examination and certification by a physician or
psychologist.
Notwithstanding any provision of this subsection to the
contrary, if the individual to be examined under the provisions of
this section is incarcerated in a jail, prison or other
correctional facility, only the chief administrative officer of the
facility holding the individual may file the application, and the
application must include the additional statement that the
correctional facility itself cannot reasonably provide treatment
and other services for the individual's mental illness or
addiction.
(b) The person making the application shall make the
application under oath.
(c) Application for involuntary custody for examination may be
made to the circuit court or a mental hygiene commissioner of the
county in which the individual resides or of the county in which he
or she may be found. When no circuit court judge or mental hygiene
commissioner is available for immediate presentation of the
application, the application may be made to a magistrate designated
by the chief judge of the judicial circuit to accept applications
and hold probable cause hearings. A designated magistrate before
whom an application or matter is pending may, upon the availability
of a mental hygiene commissioner or circuit court judge for immediate presentation of an application or pending matter,
transfer the pending matter or application to the mental hygiene
commissioner or circuit court judge for further proceedings unless
otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information
and state facts in the application as may be required by the form
provided for this purpose by the Supreme Court of Appeals.
(e) The circuit court, mental hygiene commissioner or
designated magistrate may enter an order for the individual named
in the application to be detained and taken into custody for the
purpose of holding a probable cause hearing as provided for in
subsection (g) of this section for the purpose of an examination of
the individual by a physician, psychologist, a licensed independent
clinical social worker practicing in compliance with article
thirty, chapter thirty of this code or advanced nurse practitioner
with psychiatric certification practicing in compliance with
article seven of said chapter: Provided, That a licensed
independent clinical social worker or an advanced nurse
practitioner with psychiatric certification may only perform the
examination if he or she has previously been authorized by an order
of the circuit court to do so, said order having found that the
licensed independent clinical social worker or advanced nurse
practitioner with psychiatric certification has particularized expertise in the areas of mental health and mental hygiene
sufficient to make such determinations as are required by the
provisions of this section. The examination is to be provided or
arranged by a community mental health center designated by the
Secretary of the Department of Health and Human Resources to serve
the county in which the action takes place. The order is to
specify that the hearing be held forthwith and is to provide for
the appointment of counsel for the individual: Provided, however,
That the order may allow the hearing to be held up to twenty-four
hours after the person to be examined is taken into custody rather
than forthwith if the circuit court of the county in which the
person is found has previously entered a standing order which
establishes within that jurisdiction a program for placement of
persons awaiting a hearing which assures the safety and humane
treatment of persons: Provided further, That the time requirements
set forth in this subsection shall only apply to persons who are
not in need of medical care for a physical condition or disease for
which the need for treatment precludes the ability to comply with
said time requirements. During periods of holding and detention
authorized by this subsection, upon consent of the individual or in
the event of a medical or psychiatric emergency, the individual may
receive treatment. The medical provider shall exercise due
diligence in determining the individual's existing medical needs and provide such treatment as the individual requires, including
previously prescribed medications. As used in this section,
"psychiatric emergency" means an incident during which an
individual loses control and behaves in a manner that poses
substantial likelihood of physical harm to himself, herself or
others. Where a physician, psychologist, licensed independent
clinical social worker or advanced nurse practitioner with
psychiatric certification has within the preceding seventy-two
hours performed the examination required by the provisions of this
subdivision, the community mental health center may waive the duty
to perform or arrange another examination upon approving the
previously performed examination. Notwithstanding the provisions
of this subsection, subsection (r), section four of this article
applies regarding payment by the county commission for examinations
at hearings. If the examination reveals that the individual is not
mentally ill or addicted, or is determined to be mentally ill but
not likely to cause harm to himself, herself or others, the
individual shall be immediately released without the need for a
probable cause hearing and absent a finding of professional
negligence such examiner shall not be civilly liable for the
rendering of such opinion absent a finding of professional
negligence. The examiner shall immediately provide the mental
hygiene commissioner, circuit court or designated magistrate before whom the matter is pending the results of the examination on the
form provided for this purpose by the Supreme Court of Appeals for
entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to be held before a magistrate
designated by the chief judge of the judicial circuit, the mental
hygiene commissioner or circuit judge of the county of which the
individual is a resident or where he or she was found. If
requested by the individual or his or her counsel, the hearing may
be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and has the
right to present evidence, confront all witnesses and other
evidence against him or her and to examine testimony offered,
including testimony by representatives of the community mental
health center serving the area. Expert testimony at the hearing
may be taken telephonically or via videoconferencing. The
individual has the right to remain silent and to be proceeded
against in accordance with the rules of evidence of the Supreme
Court of Appeals, except as provided for in section twelve, article
one of this chapter. At the conclusion of the hearing, the
magistrate, mental hygiene commissioner or circuit court judge
shall find and enter an order stating whether or not there is
probable cause to believe that the individual, as a result of
mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(g) The magistrate, mental hygiene commissioner or circuit
court judge at a probable cause hearing or at a final commitment
hearing held pursuant to the provisions of section four of this
article finds that the individual, as a result of mental illness,
is likely to cause serious harm to himself, herself or others or is
addicted and because of mental illness or addiction requires
treatment, the magistrate, mental hygiene commissioner or circuit
court judge may consider evidence on the question of whether the
individual's circumstances make him or her amenable to outpatient
treatment in a nonresidential or nonhospital setting pursuant to a
voluntary treatment agreement. The agreement is to be in writing
and approved by the individual, his or her counsel and the
magistrate, mental hygiene commissioner or circuit judge. If the
magistrate, mental hygiene commissioner or circuit court judge
determines that appropriate outpatient treatment is available in a
nonresidential or nonhospital setting, the individual may be
released to outpatient treatment upon the terms and conditions of
the voluntary treatment agreement. The failure of an individual
released to outpatient treatment pursuant to a voluntary treatment
agreement to comply with the terms of the voluntary treatment
agreement constitutes evidence that outpatient treatment is
insufficient and, after a hearing before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or
not the individual failed or refused to comply with the terms and
conditions of the voluntary treatment agreement and whether the
individual as a result of mental illness remains likely to cause
serious harm to himself, herself or others or remains addicted, the
entry of an order requiring admission under involuntary
hospitalization pursuant to the provisions of section three of this
article may be entered. In the event a person released pursuant to
a voluntary treatment agreement is unable to pay for the outpatient
treatment and has no applicable insurance coverage, including, but
not limited to, private insurance or Medicaid, the Secretary of the
Department of Health and Human Resources may transfer funds for the
purpose of reimbursing community providers for services provided on
an outpatient basis for individuals for whom payment for treatment
is the responsibility of the Department: Provided, That the
Department may not authorize payment of outpatient services for an
individual subject to a voluntary treatment agreement in an amount
in excess of the cost of involuntary hospitalization of the
individual. The Secretary shall establish and maintain fee
schedules for outpatient treatment provided in lieu of involuntary
hospitalization. Nothing in the provisions of this article
regarding release pursuant to a voluntary treatment agreement or
convalescent status may be construed as creating a right to receive outpatient mental health services or treatment or as obligating any
person or agency to provide outpatient services or treatment. Time
limitations set forth in this article relating to periods of
involuntary commitment to a mental health facility for
hospitalization do not apply to release pursuant to the terms of a
voluntary treatment agreement: Provided, however, That release
pursuant to a voluntary treatment agreement may not be for a period
of more than six months if the individual has not been found to be
involuntarily committed during the previous two years and for a
period of no more than two years if the individual has been
involuntarily committed during the preceding two years. If in any
proceeding held pursuant to this article the individual objects to
the issuance or conditions and terms of an order adopting a
voluntary treatment agreement, then the circuit judge, magistrate
or mental hygiene commissioner may not enter an order directing
treatment pursuant to a voluntary treatment agreement. If
involuntary commitment with release pursuant to a voluntary
treatment agreement is ordered, the individual subject to the order
may, upon request during the period the order is in effect, have a
hearing before a mental hygiene commissioner or circuit judge where
the individual may seek to have the order canceled or modified.
Nothing in this section may affect the appellate and habeas corpus
rights of any individual subject to any commitment order.
(h) If the certifying physician or psychologist determines
that a person requires involuntary hospitalization for an addiction
to a substance which, due to the degree of addiction, creates a
reasonable likelihood that withdrawal or detoxification from the
substance of addiction will cause significant medical
complications, the person certifying the individual shall recommend
that the individual be closely monitored for possible medical
complications. If the magistrate, mental hygiene commissioner or
circuit court judge presiding orders involuntary hospitalization,
he or she shall include a recommendation that the individual be
closely monitored in the order of commitment.
(i) The Supreme Court of Appeals and the Secretary of the
Department of Health and Human Resources shall collect data and
report to the Legislature at its regular annual sessions in two
thousand three and two thousand four of the effects of the changes
made in the mental hygiene judicial process along with any
recommendations which they may deem proper for further revision or
implementation in order to improve the administration and
functioning of the mental hygiene system utilized in this state, to
serve the ends of due process and justice in accordance with the
rights and privileges guaranteed to all citizens, to promote a more
effective, humane and efficient system and to promote the
development of good mental health. The Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources
shall specifically develop and propose a statewide system for
evaluation and adjudication of mental hygiene petitions which shall
include payment schedules and recommendations regarding funding
sources. Additionally, the Secretary of the Department of Health
and Human Resources shall also immediately seek reciprocal
agreements with officials in contiguous states to develop
interstate/intergovernmental agreements to provide efficient and
efficacious services to out-of-state residents found in West
Virginia and who are in need of mental hygiene services.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2186) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Minear--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2186) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2186--A Bill to amend and reenact §27-5-2
of the Code of West Virginia, 1931, as amended, relating to
institution of proceedings for involuntary custody for examination.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Sharpe, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2457, Limiting the basis for calculating
the alternate method of annual contribution required by
municipalities into the Policemen's and Firemen's Pension and
Relief Fund.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 5, 2005;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
William R. Sharpe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2457) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a second time and ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2528, Relating to alternative programs for
the education of teachers.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2528) contained in the preceding
report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-1a. Alternative programs for the education of teachers.
(a) By the first day of July, one thousand nine hundred
ninety-one fifteenth day of August, two thousand five, the State
Board, of Education, after consultation with the Secretary of
Education and the Arts, shall adopt promulgate rules in accordance
with the provisions of article three-b, chapter twenty-nine-a of
this code for the approval and operation of teacher education
programs which are an alternative to the regular college or
university programs for the education of teachers. To participate
in an approved alternative teacher education program, the candidate
must hold an alternative program teacher certificate issued by the
Superintendent and endorsed for the instructional field in which
the candidate seeks certification. An alternative program teacher
certificate is a temporary certificate issued for one year to a
candidate who does not meet the standard educational requirements
for certification. The certificate may be renewed no more than two times. No individual may hold an alternative program teacher
certificate for a period exceeding three years. The alternative
program teacher certificate shall be considered a professional
teaching certificate for the purpose of the issuance of a
continuing contract. To be eligible for such a an alternative
program teacher certificate, an applicant shall:
(1) Possess at least a bachelor's degree from an a regionally
accredited institution of higher education in a discipline taught
in the public schools except that the rules established by the
Board may exempt candidates in selected vocational and technical
areas who have at least ten years' experience in the subject field
from this requirement;
(2) Pass an appropriate State Board-approved basic skills and
subject matter test or complete three years of successful
experience within the last seven years in the area for which
licensure is being sought;
(3) Be a citizen of the United States, be of good moral
character and physically, mentally and emotionally qualified to
perform the duties of a teacher, and have attained the age of
eighteen years on or before the first day of October of the year in
which the alternative program teacher certificate is issued; and
(4) Have been offered employment in a school included in an
alternative teacher education plan approved by the board to offer an alternative teacher education program. by a county board in an
area of critical need and shortage; and
(5) Qualify following a criminal history check pursuant to
section ten of this article.
Persons who pass the appropriate test as set forth in
subdivision (2) above satisfy the requirements set forth in
subdivisions (1) through (5), inclusive, of this subsection shall
be granted a formal document which will enable them to seek
employment as an alternative program teacher in a public school
approved to offer an alternative teacher education program work in
a public school in West Virginia.
(b) The rules adopted by the Board shall include provisions
for the approval of alternative teacher education programs which
may be offered by schools, school districts, consortia of schools
or regional education service agency and for the setting of tuition
charges to offset the program costs. An approved alternative
teacher education program shall be in effect for a school, school
district, consortium of schools or regional education service
agency before an alternative program teacher may be employed in
that school, school district, consortium of schools or regional
education service agency. Approximately two hundred hours of
formal instruction shall be provided in all of the three following
phases combined. An approved alternative program shall provide essential knowledge and skills to alternative program teachers
through the following phases of training:
(1) A full-time seminar/practicum of no less than twenty and
no more than thirty days duration which is accomplished before the
alternative program teacher has full responsibility for a
classroom. The seminar/practicum shall provide formal instruction
in the essential areas for professional study which shall emphasize
the topics of student assessment, development and learning,
curriculum, classroom management, and the use of educational
computers and other technology and shall introduce basic teaching
skills through supervised teaching experiences with students. The
seminar and practicum components shall be integrated and shall
include an orientation to the policies, organization and curriculum
of the employing district;
(2) A period of intensive on-the-job supervision beginning the
first day on which the alternative program teacher assumes full
responsibility for a classroom and continuing for a period of at
least ten weeks. During this time, the alternative program teacher
shall be visited and critiqued no less than one time per week by
members of a professional support team and shall be observed and
formally evaluated at the end of five weeks and at the end of ten
weeks by the appropriately certified members of the team. During
the same period, formal instruction shall be continued in the essential areas for professional study which shall emphasize the
topics of teaching skills, student assessment, development and
learning, curriculum, classroom management, and the use of
educational computers and other technology. At the end of the
ten-week period, the alternative program teacher shall receive a
formal written progress report from the chairperson of the support
team; and
(3) An additional period of continued supervision and
evaluation of no less than twenty weeks duration. During this
period, the alternative program teacher shall be visited and
critiqued at least twice per month and shall be observed formally
and evaluated at least twice. No more than two months shall pass
without a formal evaluation. Formal instruction shall continue in
the essential areas for professional study. Opportunities shall be
provided for the alternative program teacher to observe the
teaching of experienced colleagues.
(1) Instruction. -- The alternative preparation program shall
provide a minimum of eighteen semester hours of instruction in the
areas of student assessment; development and learning; curriculum;
classroom management; the use of educational computers and other
technology; and special education and diversity. All programs
shall contain a minimum of three semester hours of instruction in
special education and diversity out of the minimum eighteen required semester hours.
(2) Phase I. -- Phase I shall consist of a period of intensive
on-the-job supervision by an assigned mentor and the school
administrator for a period of not less than two weeks and no more
than four weeks. The assigned mentor shall meet the requirements
for mentor set forth in section two-b of this article and be paid
the stipend pursuant to that section
. During this time, the
teacher shall be observed daily. This phase shall include an
orientation to the policies, organization and curriculum of the
employing district. The alternative program teacher shall begin to
receive formal instruction in those areas listed in subdivision (1)
of this subsection.
(3) Phase II. -- Phase II shall consist of a period of
intensive on-the-job supervision beginning the first day following
the completion of Phase I and continuing for a period of at least
ten weeks. During Phase II, the alternative program teacher shall
be visited and critiqued no less than one time per week by members
of a professional support team, defined in subsection (c) of this
section, and shall be observed and formally evaluated at the end of
five weeks and at the end of ten weeks by the appropriately
certified members of the team. At the end of the ten-week period,
the alternative program teacher shall receive a formal written
progress report from the chairperson of the support team. The alternative program teacher shall continue to receive formal
instruction in those areas listed above under subdivision (1) of
this subsection.
(4) Phase III. -- Phase III shall consist of an additional
period of continued supervision and evaluation of no less than
twenty weeks' duration. The professional support team will
determine the requirements of this phase with at least one formal
evaluation being conducted at the completion of the phase. The
alternative program teacher shall continue to receive formal
instruction in those areas listed above under subdivision (1) of
this subsection and receive opportunities to observe the teaching
of experienced colleagues.
(c) Training and supervision of alternative program teachers
shall be provided by a professional support team comprised of a
school principal, an experienced classroom teacher who satisfies
the requirements for mentor for the Beginning Educator Internship
as specified in section two-b of this article, a college or
university education faculty member and a curriculum supervisor.
Districts or schools which do not employ curriculum supervisors or
have been unable to establish a relationship with a college or
university shall provide for comparable expertise on the team. The
school principal shall serve as chairperson of the team. In
addition to other duties assigned to it under this section and section one-b of this article, the professional support team shall
submit a written evaluation of the alternative program teacher to
the county superintendent. The written evaluation shall be in a
form specified by the county superintendent and submitted on a date
specified by the county superintendent that is prior to the first
Monday of May. The evaluation shall report the progress of the
alternative program teacher toward meeting the academic and
performance requirements of the program.
(d) The training efforts of the districts shall be coordinated
by the center for professional development and the center shall
provide an orientation and training program for professional
support team members shall be coordinated and provided by the
Center for Professional Development in coordination with the school
district, consortium of schools, regional education service agency
and institution of higher education or any combination of these
agencies as set forth in the plan approved by the State Board
pursuant to subsection (e) of this section.
(e) A school, school district, consortium of schools or
regional education service agency seeking to employ an alternative
program teacher must submit a plan to the State Board of Education
and receive approval. in accordance with the same procedures used
for approval of collegiate preparation programs. Each plan shall
describe how the proposed training program will accomplish the key elements of an alternative program for the education of teachers as
set forth in this section. Each school, school district,
consortium of schools or regional education service agency shall
show evidence in its plan of having sought joint sponsorship of
their training program with institutions of higher education.
(f) The State Board shall promulgate a rule in accordance with
article three-b, chapter twenty-nine-a of this code for the
approval and operation of alternative education programs to prepare
highly qualified special education teachers that are separate from
the programs established under the other provisions of this section
and are applicable only to teachers who have at least a bachelor's
degree in a program for the preparation of teachers from a
regionally accredited institution of higher education. These
programs are subject to the other provisions of this section only
to the extent specifically provided for in the rule. These
programs may be an alternative to the regular college and
university programs for the education of special education teachers
and also may address the content area preparation of certified
special education teachers. The programs shall incorporate
professional development to the maximum extent possible to help
teachers who are currently certified in special education to obtain
the required content area preparation. Participation in an
alternative education program pursuant to this subsection shall not affect any rights
,
privileges or benefits to which the participant
would otherwise be entitled as a regular employee, nor does it
alter any rights
,
privileges or benefits of participants on
continuing contract status. The State Board shall report to the
Legislative Oversight Commission on Education Accountability on the
programs authorized under this subsection during the July, two
thousand five, interim meetings or as soon thereafter as practical
prior to implementation of the programs.
(g) The State Board shall promulgate a rule in accordance with
article three-b, chapter twenty-nine-a of this code for the
approval and operation of alternative education programs to prepare
highly qualified special education teachers that are separate from
the programs established under the other provisions of this section
and are applicable only to persons who hold a bachelor's degree
from a regionally accredited institution of higher education.
These programs are subject to the other provisions of this section
only to the extent specifically provided for in this rule. These
programs may be an alternative to the regular college and
university programs for the education of special education teachers
and also may address the content area preparation of such persons.
The State Board shall report to the Legislative Oversight
Commission on Education Accountability on the programs authorized
under this subsection during the July, two thousand five, interim meetings or as soon thereafter as practical prior to implementation
of the programs.
(h) For the purposes of this section, "area of critical need
and shortage" means an opening in an established, existing or newly
created position which has been posted in accordance with the
provisions of section seven-a, article four of this chapter and for
which no fully qualified applicant has been employed.
(i) The recommendation to rehire an alternative education
program teacher pursuant to section eight-a, article two of this
chapter is subject to the position being posted and no fully
qualified applicant being employed: Provided,
That this provision
does not apply to teachers who hold a valid West Virginia
professional teaching certificate in special education and who are
employed under a program operated pursuant to subsection (f) of
this section.
The following amendments to the Education committee amendment
to the bill (Eng. H. B. No. 2528), from the Committee on Finance,
were reported by the Clerk, considered simultaneously, and adopted:
On page eleven, section one-a, subsection (i), by striking out
the words "in special education";
And,
On page eleven, section one-a, after subsection (i), by adding
a new subsection, designated subsection (j), to read as follows:
(j) When making decisions affecting the hiring of an
alternative program teacher under the provisions of this section,
a county board shall give preference to applicants who hold a valid
West Virginia professional teaching certificate.
The question now being on the adoption of the Education
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill
(Eng. H. B. No. 2528)
, as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2528) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2528) passed.
At the request of Senator Plymale, as chair of the Committee
on Education, unanimous consent being granted, the unreported
Education committee amendment to the title of the bill was
withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2528--A Bill to amend and reenact
§18A-3-1a of the Code of West Virginia, 1931, as amended, relating
to alternative programs for the education of teachers; providing
for alternative program certificate, eligibility, issuance, scope
and renewal limitation; changing activities, components and phases of training for alternative programs; providing for program
coordination, training and approval; authorizing separate programs
to prepare highly qualified special education teachers; requiring
position to be posted in certain instances; and establishing hiring
preference.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2853, Relating to the West Virginia
Courtesy Patrol Program.
With amendments from the Committee on Transportation and
Infrastructure pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 7, 2005;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Transportation and
Infrastructure to which the bill was first referred; and as last
amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2853) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on
Transportation and Infrastructure, were reported by the Clerk,
considered simultaneously, and adopted:
O
n page five, section two, line twenty-one, after the word
"program" by changing the period to a colon and inserting the
following proviso: Provided, That matching federal funds are
available to fund the courtesy patrol program and that said
matching federal funds shall not exceed five million dollars
annually.;
On page five, section two, line twenty-two, after the word
"Highways" by inserting a comma and the words "using available
federal funds,";
On page five, section two, line twenty-eight, after the word
"provide" by inserting a comma and the words "with federal funds,";
And,
On page, five, section two, line thirty-two, after the word
"patrol" by inserting the words "utilizing moneys made available by
the federal government".
The following amendments to the bill (Eng. H. B. No. 2853),
from the Committee on Finance, were next reported by the Clerk,
considered simultaneously, and adopted:
On page five, section two, line nineteen, by striking out the
word "budge" and inserting in lieu thereof the word "budget";
On page seven, section three, line twenty-eight, after "(c)"
by striking out the comma and inserting in lieu thereof the words
"of this";
On page seven, section three, lines twenty-eight and twenty-
nine, by striking out the words "three, article two-d of this
chapter";
On page seven, section three, line thirty-three, after "(c)"
by striking the comma and inserting in lieu thereof the words "of
this";
And,
On page seven, section three, line thirty-four, by striking
out the words "three, article two-d of this chapter".
The bill (Eng. H. B. No. 2853), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2853) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2853) passed.
The following amendment to the title of the bill, from the
Committee on Transportation and Infrastructure, was reported by the
Clerk and adopted:
O
n page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2853--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §17-2D-1, §17-2D-2, §17-2D-3 and §17-2D-4, all relating
to the West Virginia Courtesy Patrol; providing a purpose;
addressing the operation, scope and funding of the courtesy patrol
program; and providing education services to courtesy patrol
participants after program enrollment.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2939, Relating to the Federal Cash
Management Act.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2939) contained in the preceding report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2939) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2939) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2939) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2980, Providing for the
certification of special inspectors and to permit the acceptance of inspections provided by special inspectors in lieu of inspections
by the Division of Labor.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2980) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a second time and ordered to third
reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2980) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2980) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3130, Requiring local boards
of health to conduct inspections of all elementary and secondary
schools.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 7, 2005;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3130) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendments to the bill, from the Committee on
Education, were reported by the Clerk and adopted:
On page three, section six, line nineteen, by striking out the
words "shall further" and inserting in lieu thereof the words
"further shall".
And,
On page eleven, section six, line one hundred seventy-nine, by
striking out the words "section five,".
The following amendments to the bill, from the Committee on Finance, were next reported by the Clerk, considered
simultaneously, and adopted:
On page eleven, section six, line one hundred eighty-one, by
striking out the words "as required by" and inserting in lieu
thereof the words "pursuant to";
And,
On page fifteen, section eleven, by striking out all of
subdivision (11) and inserting in lieu thereof a new subdivision
(11), to read as follows:
(11) Report the board's findings each time the board inspects
a primary or secondary school to the principal of the school, the
county superintendent and the president of the county school board,
or to persons of like responsibility in the case of a private
school. If a serious or ongoing health issue continues to exist,
the board may send the report to the Commissioner of the Bureau for
Public Health and the State Board of Education.
The bill (Eng. Com. Sub. for H. B. No. 3130), as amended, was
then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Boley, Bowman,
Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, Oliverio, Plymale, Prezioso, Sharpe, Unger, White, Yoder and Tomblin (Mr. President)--23.
The nays were: Barnes, Caruth, Facemyer, Guills, Harrison,
Lanham, McKenzie, Minard, Minear, Sprouse and Weeks--11.
Absent: None.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3306, Allowing fees charged for requests
for information from the central abuse registry to be used for
criminal record keeping.
Now on second reading, having been read a first time and
referred to the Committee on Finance on April 6, 2005;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 3306) contained in the preceding
report from the Committee on Finance was taken up for immediate consideration, read a second time and ordered to third reading.
On motion of Senator Helmick, the constitutional rule
requiring a bill to be read on three separate days was suspended by
a vote of four fifths of the members present, taken by yeas and
nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3306) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3306) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3362, Creating the "Hybrid Canine Control
Act".
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 3362) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter,
Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder
and Tomblin (Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
The bill (Eng. H. B. No. 3362) was then read a second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §19-20B-1, §19-20B-2,
§19-20B-3, §19-20B-4, all to read as follows:
ARTICLE 20B. HYBRID CANINE CONTROL ACT.
§19-20B-1. Title.
This act may be known as the "Hybrid Canine Control Act".
§19-20B-2. Definitions.
As used in this article:
(a) "Commissioner" means the state Commissioner of Agriculture; and
(b) "Hybrid canine" means any animal which at any time has
been or is permitted, registered, licensed, advertised or otherwise
described or represented as a hybrid canine, wolf-dog hybrid,
coyote-dog hybrid or as being the offspring of a wolf and domestic
dog or offspring of a coyote and domestic dog or any combination of
such animals to a licensed veterinarian, law-enforcement officer,
humane officer, dog warden, deputy dog warden, animal control
officer, an official of a county health department, Commissioner of
the Department of Agriculture or the Director of the Division of
Natural Resources.
§19-20B-3. Unlawful to possess hybrid canines.
It is unlawful to possess a hybrid canine as defined in
section two of this article.
§19-20B-4. Penalties.
(a) A person in violation of this article shall be guilty of
a misdemeanor and, upon conviction, be fined not less than fifty
dollars nor more than one thousand dollars, or be confined in a
regional jail not less than ten days nor more than sixty days, or
both.
(b) A person who abandons or releases a hybrid canine into the
wild shall be guilty of a misdemeanor and, upon conviction, be
fined not less than fifty dollars nor more than one thousand dollars, or be confined in a regional jail not less than ten days
nor more than sixty days, or both.
(c) Magistrates shall have concurrent jurisdiction with the
circuit courts to enforce the penalties prescribed by this article.
Following discussion,
The question being on the adoption of the Judiciary committee
amendment to the bill.
On motion of Senator Kessler, further consideration of the
bill and the pending Judiciary committee amendment was made a
special order of business following consideration of executive
nominations, having been previously set as a special order
following an anticipated recess.
Without objection, the Senate 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. 248, Relating to requirement that
technology expenditures be made in accordance with Education
Technology Strategic Plan.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-
6 and §18-2J-7 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 2J. PUBLIC AND HIGHER EDUCATION UNIFIED EDUCATIONAL
TECHNOLOGY STRATEGIC PLAN.
§18-2J-1. Findings; intent and purpose of article.
(a) The Legislature finds that technology may be used in the
public school system for many purposes, including, but not limited
to, the following:
(1) As an instructional tool that enables teachers to meet the
individual instructional needs of students who differ in learning
styles, learning rates and the motivation to learn;
(2) As an effective resource for providing corrective,
remedial and enrichment activities to help students achieve
proficiency at grade level or above in the basic skills of reading,
composition and arithmetic that are essential for advancement to
more rigorous curriculum and success in higher education,
occupational and avocational pursuits;
(3) To ensure that all students have a basic level of computer
literacy that will enable them to participate fully in a society in
which computers are an ever more prevalent medium for social,
economic and informational interaction;
(4) To provide greater access for students to advanced
curricular offerings, virtual field trips, problemsolving, team-
building exercises, reference information and source knowledge than
could be provided efficiently through traditional on-site delivery
formats;
(5) To help students obtain information on post-secondary
educational opportunities, financial aid and the skills and
credentials required in various occupations that will help them
better prepare for a successful transition following high school;
(6) To help students learn to think critically, apply academic
knowledge in real life situations, make decisions and gain an
understanding of the modern workplace environment through simulated
workplace programs;
(7) As a resource for teachers by providing them with access
to sample lesson plans, curriculum resources, on-line staff
development, continuing education and college coursework; and
(8) As a tool for managing information, reporting on measures
of accountability, analyzing student learning and helping to
improve student, school and school system performance.
(b) The Legislature finds that technology may be used in the
system of higher education for many purposes including, but not
limited to, the following:
(1) For teaching, learning and research for all students
across all disciplines and programs;
(2) By students, staff and faculty to discover, create,
communicate and collaborate, as well as to enhance research and
economic development activities;
(3) For digital age literacy, problemsolving, creativity,
effective communication, collaboration and high productivity skills
essential for West Virginia citizens in a rapidly changing global
economy;
(4) By libraries in higher education to offer reference
services in a virtual environment online;
(5) By libraries in higher education to create and share
cataloging records, and that it is possible to create a seamless
resource for sharing these resources between public and higher
education; and
(6) To offer electronic document delivery services to distance
education students and to a multitude of professionals throughout
the state.
(c) The Legislature further finds that all of the uses of
technology in the public school and higher education systems are not necessarily exclusive and, therefore, that areas exist wherein
cooperation and collaboration between the public schools, the
institutions of higher education and their respective governing
bodies will enable them to combine and share resources, improve
efficiency and better serve their students.
(d) The intent and purpose of this article is to establish a
unified approach to the planning, procurement and implementation of
technology and technology services in the public schools, the
institutions of higher education and their respective governing
bodies that will guide the administration and allocation of
educational technology funds.
§18-2J-2. Governor's Advisory Council for Educational Technology.
(a) There is established under the Governor's Office of
Technology the Governor's Advisory Council for Educational
Technology composed of fifteen members as follows:
(1) The Governor's Educational Technology Advisor, ex officio,
who shall chair the council;
(2) The Governor's Chief Technology Officer, ex officio;
(3) One public school technology coordinator;
(4) One public elementary, middle or junior high school
teacher;
(5) One public secondary school teacher;
(6) A technology representative from Marshall University;
(7) A technology representative from West Virginia University;
(8) One member of the Center for Professional Development
Board;
(9) Three individuals from the private sector with expertise
in education technology;
(10) One public secondary or higher education student;
(11) One representative of the Office of Business Development;
(12) One member of the Higher Education Policy Commission, or
his or her designee; and
(13) One member of the State Board, or his or her designee.
(b) The Advisory Council shall meet as necessary, but shall
hold no less than four meetings annually. Eight members
constitutes a quorum for conducting the business of the Advisory
Council. All members of the Advisory Council are entitled to vote.
(c) The thirteen members of the Council who are not members ex
officio shall be appointed by the Governor with the advice and
consent of the Senate for terms of three years, except that of the
original appointments, four members shall be appointed for one
year; four members shall be appointed for two years; and five
members shall be appointed for three years. No member may serve
more than two consecutive full terms, nor may a member be appointed
to a term which results in the member serving more than seven
consecutive years.
(d) Members of the Advisory Council shall serve without
compensation, but shall be reimbursed by the Governor for all
reasonable and necessary expenses actually incurred in the
performance of their official duties under this article upon
presentation of an itemized sworn statement of their expenses,
except that any member of the Advisory Committee who is an employee
of the state shall be reimbursed by the employing agency.
§18-2J-3. Powers and duties of Governor's Advisory Council for
Educational Technology.
(a) In addition to any other powers and duties assigned to it
by this article and in this code, Governor's Advisory Council for
Educational Technology shall:
(1) Assess the broad spectrum of technology needs present
within the state's education systems as the basis for constructing
a Unified Educational Technology Strategic Plan that will guide the
administration and allocation of educational technology funds;
(2) Assemble and integrate into the planning process the
perspectives of students, teachers, faculty and administrators
regarding educational technology programs;
(3) Assess, evaluate and publicize the effects of technology
use by educators and students toward student learning and
achievement;
(4) Explore new approaches to improve administration, accountability and student achievement within the education systems
through technology application;
(5) Promulgate a legislative rule incorporating a Unified
Educational Technology Strategic Plan as provided in section five
of this article;
(6) Monitor the technology programs of the agencies and
education systems affected by the educational technology strategic
plan to assess its implementation and effectiveness; and
(7) Advise the Governor and the Legislature on any matters the
Council considers important inform the Governor and the Legislature
on the state of education technology in the public schools and the
institutions of higher education and on any matters requested by
the Governor and the Legislature.
§18-2J-4. Educational technology strategic plan goals and
strategies.
(a) The following are goals that the Governor's Advisory
Council for Educational Technology should consider when
constructing the educational technology strategic plan. Each goal
shall apply to public education, higher education or both, as
appropriate:
(1) Maintaining a reasonable balance in the resources
allocated among the customary diverse uses of technology in the
public school and higher education systems, while allowing flexibility to address unanticipated priority needs and unusual
local circumstancesand ensuring efficient and equitable use of
technology at all levels from primary school through higher
education, including vocational and adult education;
(2) Providing for uniformity in technological hardware and
software standards and procedures to achieve interoperability
between the public school and higher education systems to the
extent that the uniformity is considered prudent for reducing
acquisition cost, avoiding duplication, promoting expeditious
repair and maintenance and facilitating user training, while
allowing flexibility for local innovations and options when the
objectives relating to uniformity are reasonably met;
(3) Preserving the integrity of governance, administration,
standards and accountability for technology within the public
school and higher education systems, respectively, while
encouraging collaborative service delivery and infrastructure
investments with other entities that will reduce cost, avoid
duplication or improve services, particularly with respect to other
entities such as the educational broadcasting system, public
libraries and other governmental agencies with compatible
technology interests;
(4) Improving the long-term ability of the state to
efficiently manage and direct the resources available for technology in the public school and higher education systems to
establish appropriate infrastructure that ensures, to the extent
practicable, a sustainable, cost-effective and transparent
migration to new technology platforms;
(5) Fostering closer communication between faculty, students
and administrators and promoting the collaboration of schools,
libraries, researchers, community members, state agencies,
organizations, business and industry, post-secondary institutions
and public virtual learning environments to meet the needs of all
learners; and
(6) Creating and maintaining compatible and secure technology
systems that enhance the efficient operation of the education
systems.
(b) The following are strategies that the Governor's Advisory
Council for Educational Technology must address in the educational
technology strategic plan. Unless specifically identified
otherwise, each strategy shall apply to public education, higher
education or both, as appropriate:
(1) The strategy for using technology in the public school and
higher education systems consistent with the findings, intent and
purpose of this article and other uses considered necessary to
improve student performance and progress. In addition, these uses
may include:
(A) Providing for individualized instruction and accommodating
a variety of learning styles of students through computer-based
technology, video and other technology-based instruction;
(B) Advancing learning through alternative approaches in
curriculum to integrate education, research and technology into
life-long learning strategies;
(C) Increasing student access to high quality blended distance
learning curriculum using real time interactive and online distance
education tools;
(D) Recognizing that information literacy is a fundamental
competency for life-long learning and information literacy is
incorporated into the curricula of higher education and the
workplace; and
(E) Improving teaching and learning and the ability to
increase student achievement by meeting individual student needs;
(2) The strategy for allocating the resources available and
developing the capacity necessary to achieve the purposes addressed
in the plan. The strategy shall:
(A) Allow for reasonable flexibility for county boards and
regional education service agencies to receive assistance with the
development and implementation of technological solutions designed
to improve performance, enrich the curriculum and increase student
access to high level courses;
(B) Allow for reasonable flexibility for county boards,
regional education service agencies and institutional boards of
governors to implement technological solutions that address local
priorities consistent with achieving the major objectives set forth
in the education technology strategic plan; and
(C) Use the most cost-effective alternative allowable pursuant
to section six of this article for expending funds for technology
acquisition and implementation consistent with the goals of the
plan;
(D) Encourage development by the private sector of
technologies and applications appropriate for education; and
(E) Encourage the pursuit of funding through grants, gifts,
donations or any other source for uses related to education
technology;
(3) For public education, the strategy for using technology to
increase and maintain equity in the array and quality of
educational offerings, expand the curriculum, deliver high quality
professional development and strengthen professional qualifications
among the counties notwithstanding circumstances of geography,
population density and proximity to traditional teacher
preparation;
(4) For public education, the strategy for developing and
using the capacity of the public school system to implement, support and maintain technology in the public schools through the
allocation of funds either directly or through contractual
agreements with county boards and regional education service
agencies for labor, materials and other costs associated with the
installation, set-up, internet hook-up, wiring, repair and
maintenance of technology in the public schools and state
institutions of higher education;
(5) The strategy for ensuring that the capabilities and
capacities of the technology infrastructure within the state and
its various regions is adequate for acceptable performance of the
technology being implemented in the public schools and the state
institutions of higher education, for developing the necessary
capabilities and capacities, or for pursuing alternative solutions;
(6) The strategy for maximizing student access to learning
tools and resources at all times including before and after school
or class, in the evenings, on weekends and holidays, and for public
education, noninstructional days and during vacations for student
use for homework, remedial work, independent learning, career
planning and adult basic education;
(7) The strategy for improving the efficiency and productivity
of administrators;
(8) The strategy for taking advantage of bulk purchasing
abilities to the maximum extent feasible. This may include, but is not limited to:
(A) A method of recording all technology purchases across both
the public education system and the higher education system;
(B) Combining the purchasing power of the public education
system and the higher education system with the purchasing power of
other state entities or all state entities; and
(C) A method of allowing public education and higher education
to purchase from competitively bid contracts initiated through the
southern regional education board educational technology
cooperative and the American TelEdCommunications Alliance; and
(9) A strategy for allowing any other flexibility that is
determined to be needed for the effective use of technology in
public education and higher education.
(c) Nothing in this section may be construed to conflict with
a state higher education institution's mission as set forth in its
compact.
§18-2J-5. Unified Educational Technology Strategic Plan.
(a) On or before the first day of October, two thousand five,
the Governor's Advisory Council for Educational Technology shall
promulgate a legislative rule in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code which
incorporates a Unified Educational Technology Strategic Plan as
provided in this article. On or before the first day of October in each year thereafter, the Council shall submit annual updates to
the rule and plan, along with any necessary revisions. The time
line for updating and revising the rule and plan also shall be in
accordance with the federal E-rate discount program. The plan
shall become effective the school year following the time of
approval of the rule.
(b) On or before the fifteenth day of June, two thousand five,
and each year thereafter, each state institution of higher
education shall submit a technology plan for the next fiscal year
to the Higher Education Policy Commission. The plan shall be in a
form and contain the information determined by the Governor's
Advisory Council for Educational Technology. On or before the
thirtieth day of June, two thousand five, and each year thereafter,
the Higher Education Policy Commission shall submit the plans to
the Governor's Advisory Council for Educational Technology for its
consideration in constructing the Unified Educational Technology
Strategic Plan.
§18-2J-6. Allocation and expenditure of appropriations.
(a) After the thirtieth day of June, two thousand five,
notwithstanding any other provision of this code to the contrary,
and specifically section seven, article two-e of this chapter, the
State Board, regional education service agencies, the Higher
Education Policy Commission and the state institutions of higher education shall allocate and expend state appropriations for
technology in the public schools or the state institutions of
higher education, as appropriate, in accordance with the Unified
Educational Technology Strategic Plan subject to the following:
(1) Expenditures from grants which can only be used for
certain purposes are not required to be made in accordance with the
plan.
(2) If the legislative rule incorporating the plan is not
approved in accordance with the provisions of article three-a,
chapter twenty-nine-a of this code, the plan has no effect;
(3) For public education, the expenditures shall be made
directly, or through lease-purchase arrangements pursuant to the
provisions of article three, chapter five-a of this code, or
through contractual agreements or grants to county boards and
regional education service agencies or any combination of the
foregoing options as shall best implement the strategic plan in the
most cost-effective manner;
(4) Nothing in this section nor in the prior enactment of this
section restricts the expenditure of educational technology funds
appropriated for the fiscal year two thousand five for the purposes
for which they were allocated; and
(5) Except as provided in subdivision (2) of this subsection,
no more than fifty percent of the state appropriations for the fiscal year two thousand six to the Department of Education for
educational technology in kindergarten through the twelfth grade
may be expended or encumbered except in accordance with the Unified
Educational Technology Strategic Plan.
(b) Nothing in this section requires any specific level of
appropriation by the Legislature.
§18-2J-7. Report to the Legislative Oversight Commission on
Education Accountability.
The State Board and the Higher Education Policy Commission
shall report to the Legislative Oversight Commission on Education
Accountability annually as soon as practical following the
approval, annual update or revision of the Unified Educational
Technology Strategic Plan. The report shall include the proposed
allocations of funds or planned expenditures for educational
technology within the respective public school and higher education
systems during the next fiscal year in accordance with the plan
compared with the previous year's allocations and expenditures.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 248--A Bill
to amend and reenact
§18-2J-
1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7 of
the Code of West Virginia, 1931, as amended, all relating to public and higher education technology strategic plan; making findings and
stating intent and purpose; providing for Advisory Council for
Educational Technology; providing powers and duties; providing for
goals and strategies for technology strategic plan; requiring
legislative rule incorporating technology strategic plan; requiring
allocation and expenditure of technology appropriations in
accordance with rule with certain exceptions;
and report to
Legislative Oversight Commission.
On motion of Senator Plymale, the following amendments to the
House of Delegates amendments to the bill (Eng. S. B. No. 248) were
reported by the Clerk and adopted:
On page six, section three, by striking out "(a)";
On page six, section three, after the word "code," by
inserting the word "the";
On page six, section three, by striking out all of subdivision
(5) and inserting in lieu thereof a new subdivision (5), to read as
follows:
"(5) Develop a Unified Educational Technology Strategic Plan
as required in section five of this article;";
On page seven, section three, subdivision (7), after the word
"inform" by inserting the word "to";
On page thirteen, section five, by striking out all of
subsection (a) and inserting in lieu thereof a new subsection (a), to read as follows:
(a) The Governor's Advisory Council for Educational Technology
shall develop a Unified Educational Technology Strategic Plan and
submit the plan to the Legislative Oversight Commission on
Education Accountability for approval on or before the first day of
October, two thousand five. On or before the first day of October
in each year thereafter, the Council shall update the plan and
submit the plan to the Commission for approval. The time line for
updating and revising the rule and plan also shall be in accordance
with the federal E-rate discount program. The plan is not
effective until approved by the Commission.;
On page fourteen, section six, by striking out all of
subdivision (2) and inserting in lieu thereof a new subsection (2),
to read as follows:
"(2) If the plan is not approved by the Legislative Oversight
Commission on Education Accountability, the plan has no effect;";
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 248--A Bill
to amend and reenact §18-2J-
1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7 of
the Code of West Virginia, 1931, as amended, all relating to public
and higher education technology strategic plan; making findings and stating intent and purpose; providing for Advisory Council for
Educational Technology; providing powers and duties; providing for
goals and strategies for technology strategic plan; requiring
approval of the plan by the Legislative Oversight Commission on
Education Accountability; requiring allocation and expenditure of
technology appropriations in accordance with the plan with certain
exceptions; and report to Legislative Oversight Commission.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 248, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 248) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 248) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate recessed until 4 p.m.
today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Love, the special order of business set
for this position on the calendar (consideration of executive
nominations) was postponed and made a special order of business at
8 p.m. tonight.
The President then stated that the hour had arrived for the special order of business, as to
Eng. House Bill No. 3362, Creating the "Hybrid Canine Control
Act".
Having been read a second time in earlier proceedings today,
and now coming up as a special order with a Judiciary committee
amendment pending (shown in the Senate Journal of today, pages 323
through 325, inclusive), was again reported by the Clerk.
The question being on the adoption of the Judiciary committee
amendment to the bill.
On motion of Senator Kessler, the bill (Eng. H. B. No. 3362)
was recommitted to the Committee on the Judiciary.
At the request of Senator Love, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
The Senate again proceeded to the sixth order of business.
At the request of Senator Chafin, and by unanimous consent,
Senators Tomblin (Mr. President), Bailey, Barnes, Boley, Bowman,
Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, Weeks, White and Yoder offered the
following resolution from the floor:
Senate Resolution No. 48--Recognizing the public service of Betty Lee Baird, Executive Secretary to the Senate President and
distinguished West Virginian.
Whereas, Betty Lee Baird was born December 9, 1941, in
Richwood, Nicholas County, the daughter of Harry and Macel
McCroskey; and
Whereas, Betty Lee Baird is the proud mother of two children,
Deanna "Dee Dee" Thomas and William Albert Baird III; and
Whereas, In February, 1973, Betty Lee Baird began her service
with the West Virginia Senate on a part-time basis in the
secretarial pool and later moved to the Office of the Senate
President as a part-time receptionist; and
Whereas, Betty Lee Baird won a national typing contest in
1980, typing 166 words per minute. She traveled the United States
extensively during her reign and competed against other typists in
stores and malls across the country; and
Whereas, In May, 1993, Betty Lee Baird became a full-time
employee of the West Virginia Senate as Executive Secretary to the
Senate President and continues to serve in that capacity with
outstanding dedication and commitment; and
Whereas, Betty Lee Baird devotes herself to the day-to-day
operations of the Senate President's Office. She works tirelessly
to initiate a system of recordkeeping for the Senate relating to
executive nominations of the various departments, agencies, boards and commissions submitted by the Governor to the Senate for
confirmation. One of her many duties is the assignment of parking
spaces for the Senators and staff where she is affectionately known
as the "Parking Queen"; and
Whereas, Betty Lee Baird has decided to retire from public
service in July, 2005, bringing to an end 32 years of dedicated
service to the West Virginia Senate; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the public service of Betty
Lee Baird, Executive Secretary to the Senate President and
distinguished West Virginian; and, be it
Further Resolved, That the Senate hereby extends its heartfelt
appreciation to Betty Lee Baird for her many years of dedicated
service to the West Virginia Senate. Her commitment to the Senate,
together with her knowledge and expertise of the legislative
process has been an inspiration to those who have known and worked
with her; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Betty Lee Baird.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution (S. R. No. 48), and on this question, Senator Chafin demanded the yeas and
nays.
The roll being taken, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared the resolution (S. R. No. 48)
adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
proceeded to the seventh order of business.
Senate Concurrent Resolution No. 94, Requesting Joint
Committee on Government and Finance study affordable housing for
State Police officers.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 95, Requesting Joint
Committee on Government and Finance study state agencies' use of
state-owned meeting facilities.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 96, Requesting Joint
Committee on Government and Finance study state and local tax
structure.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 97, Requesting Joint
Committee on Government and Finance study eliminating incarceration
for certain misdemeanor convictions.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 98, Requesting Joint Committee on Government and Finance study legislation relating to
advertising by lawyers.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 99, Requesting Joint
Committee on Government and Finance study issues involving
compulsive gambling in state.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 100, Requesting Joint
Committee on Government and Finance study transportation safety
issues.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 101, Requesting Joint
Committee on Government and Finance study proliferation of special
license plates in state.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 102, Requesting Joint
Committee on Government and Finance study motor carrier
regulations.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 103, Requesting Joint
Committee on Government and Finance study school aid formula.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Eng. House Bill No. 2623, Continuation of the Public Land
Corporation.
On unfinished business, having been received as a House
message on yesterday, Friday, April 8, 2005, and now coming up in
regular order, was reported by the Clerk.
The following House of Delegates amendment to the Senate amendment to the bill was again reported by the Clerk:
On page one, section nine, by striking out the word "six" and
inserting in lieu thereof the word "nine".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendment to
the bill.
Engrossed House Bill No. 2623, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2623) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2623) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 145, Budget bill.
On third reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
Eng. Com. Sub. for House Bill No. 2111, Authorizing paramedics
to practice in hospital emergency rooms.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2111) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2163, Eliminating the
set-off against unemployment compensation benefits for persons
receiving social security benefits.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2163) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2229, Providing for the
temporary detention of juvenile perpetrators of domestic violence.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2229) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2266, Imposing a one hundred
dollar per year fee for licenses allowing wine sampling events by
wine retailers.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--33.
The nays were: Harrison--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2266) passed.
On motion of Senator Helmick, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2266--A Bill to amend and
reenact §60-8-3 of the Code of West Virginia, 1931, as amended,
relating to imposing a one hundred-dollar per year fee for licenses allowing wine sampling events by wine retailers; restrictions on
wine sampling events; allowing licensed restaurants to offer sealed
bottles of wine produced by a West Virginia farm winery for sale
off the premises; authorizing a special license to allow the sale
and serving of wine by nonprofit charitable organizations and
associations for certain purposes during one-day events; and
authorizing special licenses for heritage fairs and festivals
allowing the sale, serving and sampling of wine from a West
Virginia farm winery.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2271, Relating to the payment of expert
fees in child abuse and neglect cases.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2271) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2334, Relating to limiting
child out-of-state placements.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2334) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2371, Authorizing collaborative pharmacy practice agreements between pharmacists and
physicians and specify requirements for the agreements.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2371) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2444, Mandatory
participation in the motor vehicle alcohol test and lock program
for repeat offenders.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2444) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2444--A Bill to amend and
reenact §17C-5-2 of the Code of West Virginia, 1931, as amended,
and to amend reenact §17C-5A-3a of said code, all relating to
compliance with federal funding requirements regarding driving
under the influence offenders.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2471, Establishing a
financial responsibility program for inmates.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--33.
The nays were: Sprouse--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2471) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2482, Relating to including jails within
the context of certain criminal acts by incarcerated persons.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2482) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2578, Increasing the ratios
of professional and service personnel to students in net
enrollment.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and
Tomblin (Mr. President)--33.
The nays were: Love--1.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2578) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2578--A Bill to repeal §18-
2E-3e of the Code of West Virginia, 1931, as amended; and to amend
and reenact §18-9A-5a and §18-9A-5b of said code, all relating to
repealing section creating the West Virginia Science Education
Enhancement Initiative Grant Program; increasing the ratios of
professional and service personnel to students in net enrollment;
establishing the ratios for certain school years; making certain
findings; and stating legislative intent to examine state basic
foundation program and address staffing and other needs as
indicated by examination.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Love--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2578) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2619, Providing that moneys
from revenues allocated to volunteer and part volunteer fire
companies and departments may be expended for the payment of dues
to national, state and county associations.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2619) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2780, Relating to increasing the
allocation of racetrack video lottery net terminal income to be
used for payment into the pension plan for employees of the
Licensed Racing Association.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2782, Increasing the number of members a
municipality may appoint to a board of park and recreation
commission from not less than three to not more than seven.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2782) passed.
On motion of Senator Bailey, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2782--A Bill to amend and reenact §8-21-3
and §8-21-7 of the Code of West Virginia, 1931, as amended, all
relating to municipal board of park and recreation commissioners
generally; increasing the number of members the governing body may
appoint to a board of park and recreation commissioners to not more
than seven; providing for the appointment of not more than three
members from the governing body if the board of park and recreation
commissioners consists of six or seven members; and clarifying the
preparation of all public documents and records.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2802, Updating provisions pertaining to
commercial driver's licenses to conform with federal law.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2802) passed with its title.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendment to
the title of the bill was withdrawn.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2852, Implementing the
recommendations of the West Virginia Pharmaceutical Cost Council.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2852) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2852) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2878, Relating to allowing
the fraud unit to investigate the forgery of insurance documents.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2878) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2878--A Bill to amend and
reenact §23-1-1b of the Code of West Virginia, 1931, as amended; to
amend and reenact §33-41-8 of said code; and to amend said code by
adding thereto a new section, designated §33-41-8a, all relating to
insurance fraud; authorizing the Insurance Commissioner to assign the Workers' Compensation Fraud and Abuse Unit to investigate
insurance fraud; permitting the Insurance Commissioner's Fraud Unit
to investigate Workers' Compensation fraud and the forgery of
insurance documents; designating the Fraud Unit a criminal justice
agency for purposes of access to information; and requiring
fingerprinting and background checks of applicants for employment
with the Fraud Unit.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2885, Relating to tuberculosis testing,
control, treatment and commitment.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2885) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2885) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2890, Relating to unlawful
methods of hunting and fishing.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2890) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2911, Removing limitations
upon the acreage of lands that may be held by the trustee or
trustees of any church, parish or branch of religious sect, society
or denomination within this state.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2929, Relating to the
administration of anesthesia by dentists.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2929) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2937, Relating to the replacement of
individual life insurance policies and annuity contracts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2937) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2937--A Bill to amend and reenact §33-11-
5a of the Code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new section, designated §33-13-48,
all relating to replacement of life insurance and annuities; unfair
trade practices; and promulgation of emergency and legislative
rules.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2966, Creating a statewide
thoroughbred breeders program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham,
Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Harrison and Weeks--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2966) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 2984, Discontinuing the loan program
participation of teachers and nonteachers who become members of the
Teachers Retirement System on or after July 1, 2005.
On third reading, coming up in regular order, with unreported
Finance committee amendments to the bill pending, and with the
right having been granted on yesterday, Friday, April 8, 2005, for
further amendments to be received on third reading, was reported by
the Clerk.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the
bill was reported by the Clerk:
On page ten, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §5-5-3 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §5-10-2, §5-10-15, §5-10-17, §5-10-21,
§5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and §5-10-44 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §5-10-22h; that §5-10A-2
and §5-10A-3 of said code be amended and reenacted; that said code
be amended by adding thereto a new section, designated §5-10A-11;
that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code be
amended and reenacted; that §12-8-2, §12-8-3, §12-8-4, §12-8-5,
§12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §12-8-15; that §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-
34 and §15-2-37 of said code be amended and reenacted; that said
code be amended by adding thereto four new sections, designated
§15-2-25b, §15-2-31a, §15-2-31b and §15-2-39a; that §15-2A-2, §15-
2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11,
§15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code be
amended and reenacted; that said code be amended by adding thereto
four new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and
§15-2A-22; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7a-18, §18-7a-
18a, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code be
amended and reenacted; that said code be amended by adding thereto three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40;
that §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-
7B-16 of said code be amended and reenacted; that said code be
amended by adding thereto two new sections, designated §18-7B-7a
and §18-7B-20; that said code be amended by adding thereto a new
article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-
5, §18-7C-6, §18-7C-7, §18-7C-8, §18-7C-9, §18-7C-10, §18-7C-11,
§18-7C-12, §18-7C-13 and §18-7C-14; and that said code be amended
by adding thereto a new section, designated §51-9-6c, 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 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-3. Optional payment to employee in lump sum amount for
accrued and unused leave at termination of employment; no
withholding of any employee contribution deduction; exception.
Every eligible employee, as defined in section one of this
article, at the time his or her active employment ends due to
resignation, death, retirement or otherwise, may be paid in a lump
sum amount, at his or her option, for accrued and unused annual
leave at the employee's usual rate of pay at such the time. The lump sum payment shall be made by the time of what would have been
the employee's next regular payday had his or her employment
continued. In determining the amount of annual leave entitlement,
weekends, holidays or other periods of normal, noncountable time
shall be excluded, and no deductions may be made for contributions
toward retirement from lump sum payments for unused, accrued annual
leave of any kind or character, since no period of service credit
is granted in relation thereto; however, such lump sum payment for
unused, accrued leave of any kind or character may not be a part of
final average salary computation; and where any such deduction of
employee contribution may have been heretofore made previously, a
refund of such the amount deducted shall be granted the former
employee and made by the head of the respective former employer
spending unit: Provided, That the Superintendent of the department
of public safety West Virginia State Police shall make deductions
for retirement contributions of members of the department State
Police Death, Disability and Retirement Fund created and continued
in section twenty-six, article two, chapter fifteen of this code
since retirement benefits are based on cumulative earnings rather
than period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the context, the following words and phrases as used in this article,
have the following meanings:
(1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia
public employees retirement system created and established by this
article;
(3) "Board of trustees" or "board" means the board of trustees
of the West Virginia public employees retirement system;
(4) "Political subdivision" means the state of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the public employees retirement system before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the public employees retirement system
to remain members and continue to participate in the retirement
system at their option after the first day of July, one thousand nine hundred ninety-seven: Provided, however, That the regional
community policing institute which participated in the public
employees retirement system before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the public
employees retirement system to remain members and continue to
participate in the public employees retirement system after the
first day of July, two thousand;
(5) "Participating public employer" means the state of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
supreme court of appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia public employees retirement system;
(6) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That members of the Legislature, the clerk of the House of
Delegates, the clerk of the Senate, employees of the Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature
for its regular sessions or during the interim between regular
sessions and who have been or are employed during regular sessions
or during the interim between regular sessions in seven consecutive
calendar years, as certified by the clerk of the house in which the
employee served, members of the legislative body of any political
subdivision and judges of the state court of claims are considered
to be employees, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(7) "Member" means any person who is included in the
membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity
payable by the retirement system;
(9) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(10) "Service" means personal service rendered to a
participating public employer by an employee, as defined in this
article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article. This revised
definition is retroactive and applicable to the first day of April,
one thousand nine hundred eighty-eight, and thereafter;
(13) "Credited service" means the sum of a member's prior
service credit and contributing service credit standing to his or
her credit as provided in this article;
(14) "Limited credited service" means service by employees of
the West Virginia educational broadcasting authority, in the
employment of West Virginia university, during a period when the
employee made contributions to another retirement system, as
required by West Virginia university, and did not make
contributions to the public employees retirement system: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may not be used to increase benefits calculated under section twenty-
two of this article;
(15) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by him
or her to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
his or her remuneration which is not paid in money;
(16) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member (including a member of the Legislature who participates in
the retirement system in the year one thousand nine hundred
seventy-one or thereafter) during any period of three consecutive
years of his or her credited service contained within his or her
ten years of credited service immediately preceding the date his or
her employment with a participating public employer last
terminated; or
(B) If he or she has less than five years of credited service,
the average of the annual rate of compensation received by him or
her during his or her total years of credited service; and in
determining the annual compensation, under either paragraph (A) or
(B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in
any year thereafter, his or her actual legislative compensation
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code) in the year one
thousand nine hundred seventy-one or in any year thereafter, plus
any other compensation he or she receives in any year from any
other participating public employer including the state of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating public employer including the state of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(17) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(18) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(19) "Annuity" means an annual amount payable by the
retirement system throughout the life of a person. All annuities
shall be paid in equal monthly installments, using the upper cent
for any fraction of a cent;
(20) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the board of
trustees from time to time;
(21) "Retirement" means a member's withdrawal from the employ
of a participating public employer with an annuity payable by the
retirement system;
(22) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(23) "Retroactive service" means: (1) Service an employee was
entitled to, but which the employer has not withheld d to prior
service at no cost in accordance with 162 CSR 5.16;
(24) "Required beginning date" means the first day of April of
the calendar year following the later of: (A) The calendar year in
which the member attains age seventy and one-half; or (B) the
calendar year in which the member ceases providing service covered
under this system to a participating employer;
(25) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended; and
(26) "Plan year" means the same as referenced in section
forty-two of this article.
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the Board of Trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, rounding to the upper cent for
any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the Board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "Board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided, That an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform
services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the house in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen of this article, and:
Provided, however, That members of the legislative body of any
political subdivision and judges of the state Court of Claims are
employees receiving one year of service credit for each one-year
term served and pro-rated service credit for any partial term
served, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the Board of Trustees shall
decide the question;
(12) "Employer error" means an omission, misrepresentation or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error;
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member (including a member of the Legislature who participates in
the retirement system in the year one thousand nine hundred
seventy-one or thereafter), during any period of three consecutive
years of credited service contained within the member's ten years
of credited service immediately preceding the date his or her
employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited
service, the average of the annual rate of compensation received by
the member during his or her total years of credited service; and
in determining the annual compensation, under either paragraph (A)
or (B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one, or
in any year thereafter, his or her actual legislative compensation
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code), in the year
one thousand nine hundred seventy-one, or in any year thereafter, plus any other compensation he or she receives in any year from any
other participating public employer, including the State of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one, who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating
public employer including the State of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under subparagraph (ii) of this proviso, the legislative compensation of the former member shall be computed on
the basis of one thousand five hundred dollars multiplied by eight,
and the legislative compensation of the member shall be computed on
the basis set forth in the provisions of this subdivision
immediately preceding this proviso or on the basis of one thousand
five hundred dollars multiplied by eight, whichever computation as
to the member produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the
employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated
contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the Public Employees Retirement System before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the Public Employees Retirement System to remain members and continue to participate in the retirement
system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the Regional
Community Policing Institute which participated in the Public
Employees Retirement System before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after the
first day of July, two thousand;
(20) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the Board of Trustees adopts
from time to time;
(22) "Required beginning date" means the first day of April of
the calendar year following the later of: (A) The calendar year in
which the member attains age seventy and one-half years of age; or
(B) the calendar year in which a member who has attained the age
seventy and one-half years of age and who ceases providing service
covered under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between the
first day of July, one thousand nine hundred sixty-one, and the
date an employer decides to become a participating member of the
Public Employees Retirement System; (2) service prior to the first
day of July, one thousand nine hundred sixty-one, for which the
employee is not entitled to prior service at no cost in accordance
with 162 CSR 5.13; and (3) service of any member of a legislative
body or employees of the state Legislature whose term of employment
is otherwise classified as temporary for which the employee is
eligible, but for which the employee did not elect to participate
at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this
state who have served in the armed forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active duty in the armed forces of the United
States when the duty was during any period of compulsory military
service or during a period of armed conflict, as defined in this
section.
(2) In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or
enters the active service of the armed forces of the United States
during any period of compulsory military service or during a period
of armed conflict shall receive credited service for the time spent
in the armed forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the armed forces; and
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry into military service
during any period of compulsory military service or during periods
of armed conflict.
(3) Any member of the retirement system who enters the active
service of the armed forces of the United States during any period of compulsory military service or during a period of armed conflict
shall receive the credit provided by this section regardless of
whether he or she was a public employee at the time of entering the
military service.
(4) If a member of the Public Employees Retirement System
enters the active service of the United States and serves during
any period of compulsory military service or during any period of
armed conflict, during the period of the armed service and until
the member's return to the employ of a participating public
employer, the member's contributions to the retirement system is
suspended and any credit balance remaining in the member's deposit
fund shall be accumulated at regular interest: Provided, That
notwithstanding any provision in this article to the contrary, if
an employee of a participating political subdivision serving in the
military service during any period of compulsory military service
or armed conflict has accumulated credited service prior to the
last entry into military service, in an amount that, added to the
time in active military service while an employee equals nine or
more years, and the member is unable to resume employment with a
participating employer upon completion of duty due to death during
or as a result of active service, all time spent in active military
service, up to and including a total of five years, is considered
to be credited service and death benefits are vested in the member: Provided, however, That the active service during the time the
member is an employee must be as a result of an order or call to
duty, and not as a result of volunteering for assignment or
volunteering to extend the time in service beyond the time required
by order or call.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of
armed conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the Board
of Trustees has final power to determine the period.
(7) The Board is empowered to may consider a petition by any
member whose tour of duty, in a territory that would reasonably be
considered hostile and dangerous, was extended beyond the period in
which an armed conflict was officially recognized, if that tour of
duty commenced during a period of armed conflict, and the member
was assigned to duty stations within the hostile territory
throughout the period for which service credit is being sought.
The Board has the authority to evaluate the facts and circumstances
peculiar to the petition, and rule on whether granting service
credit for the extended tour of duty is consistent with the
objectives of this article. In that determination, the Board is
empowered to may grant full credit for the period under petition subject to the limitations otherwise applicable, or to grant credit
for any part of the period as the board considers appropriate, or
to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of
this section.
(b) For purposes of this section, the following definitions
apply:
(1) "Period of armed conflict" means the Spanish-American War,
the Mexican border period, World War I, World War II, the Korean
conflict, the Vietnam era, the Persian Gulf War and any other
period of armed conflict by the United States, including, but not
limited to, those periods sanctioned by a declaration of war by the
United States Congress or by executive or other order of the
President.
(2) "Spanish-American War" means the period beginning on the
twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, and includes the Philippine Insurrection, the Boxer Rebellion,
and, in the case of a veteran who served with the United States
military forces engaged in hostilities in the Moro Province, means
the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending
on the fifth day of April, one thousand nine hundred seventeen, in
the case of a veteran who during the period served in Mexico, on
its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day
of April, one thousand nine hundred seventeen, and ending on the
eleventh day of November, one thousand nine hundred eighteen, and,
in the case of a veteran who served with the United States military
forces in Russia, means the period beginning on the sixth day of
April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on
the thirty-first day of December, one thousand nine hundred forty-
six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and
ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. No military service
credit may be used in more than one retirement system administered
by the Consolidated Public Retirement Board and once used in any
system, may not be used again in any other system. The retirement
Board is authorized to determine all questions and make all
decisions relating to this section and, pursuant to the authority
granted to the retirement Board in section one, article ten-d of
this chapter, may promulgate rules relating to contributions,
benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the
following persons:
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who
continue in the employ of the participating public employer on and
after that date shall become members of the retirement system; and
all persons who become employees of a participating public employer
on or after that date shall thereupon become members of the system;
except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System
shall not include any person who is a an active contributing member
of, or who has been retired by, any of the State Teachers
Retirement Systems, the Judges' Retirement System, the any
retirement system of the Division of Public Safety West Virginia
State Police, the Deputy Sheriff Retirement System or any municipal
retirement system for either, or both, policemen police or firemen
firefighters; and the Bureau of Employment Programs, by the
Commissioner of the Bureau, may elect whether its employees will
accept coverage under this article or be covered under the
authorization of a separate enactment: Provided, That the exclusions of membership shall do not apply to any member of the
state Legislature, the Clerk of the House of Delegates, the Clerk
of the state Senate or to any member of the legislative body of any
political subdivision provided he or she once becomes a
contributing member of the retirement system: Provided, however,
That any retired member of the retirement system of the division of
public safety State Police Death, Disability and Retirement Fund,
the West Virginia State Police Retirement System, the Deputy
Sheriff Retirement System and any retired member of any municipal
retirement system for either, or both, policemen police or firemen
firefighters may on and after the effective date of this section
become a member of the retirement system as provided in this
article, without receiving credit for prior service as a municipal
policeman police officer or fireman firefighter or as a member of
the division of public safety State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System
or of the Deputy Sheriff Retirement System: Provided further, That
any retired member of the State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System,
the Deputy Sheriff Retirement System and any retired member of any
municipal retirement system for either, or both, police or
firefighters, who begins participation in the retirement system
established in this article on or after the first day of July, two thousand five, may not receive a combined retirement benefit in
excess of one hundred five percent of the member's highest annual
salary earned while either a member of the retirement system
established in this article or while a member of the other
retirement system or systems from which he or she previously
retired when adding the retirement benefit from the retirement
system created in this article to the retirement benefit received
by that member from the other retirement system or systems set
forth herein from which he or she previously retired: And provided
further, That the membership of the retirement system does not
include any person who becomes employed by the Prestera Center for
Mental Health Services, Valley Comprehensive Mental Health Center,
Westbrook Health Services or Eastern Panhandle Mental Health Center
on or after the first day of July, one thousand nine hundred
ninety-seven: And provided further, That membership of the
retirement system does not include any person who becomes a member
of the federal Railroad Retirement Act on or after the first day of
July, two thousand.
(c) Any member of the state Legislature, the Clerk of the
House of Delegates, the Clerk of the state Senate and any employee
of the state Legislature whose employment is otherwise classified
as temporary and who is employed to perform services required by
the Legislature for its regular sessions or during the interim between regular sessions and who has been or is so employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the clerk of the house
in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he or she notifies the retirement system
in writing of his or her intention to be a member of the system and
files a membership enrollment form as prescribed by the Board of
Trustees, and each person, upon filing his or her written notice to
participate in the retirement system, shall by that act authorize
the Clerk of the House of Delegates or the Clerk of the state
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct the
member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after the deductions have been
made from the member's compensation, the deductions shall be
forwarded to the retirement system.
(d) If question arises regarding the membership status of any
employee, the Board of Trustees has the final power to decide the
question.
(e) Any individual who is a leased employee is not eligible to
participate in the system. For the purposes of this article, the
term "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an
employee leasing organization or other similar organization. If a
question arises regarding the status of an individual as a leased
employee, the Board has final authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service
in force, of which at least three years are contributing service,
and who leaves the employ of a participating public employer prior
to his or her attaining age sixty years for any reason except his
or her disability retirement or death, shall be is entitled to an
annuity computed according to section twenty-two of this article,
as that section was in force as of the date of his or her
separation from the employ of a participating public employer:
Provided, That he or she does not withdraw his or her accumulated
contributions from the members' deposit fund: Provided, however,
That on and after the first day of July, two thousand two, any
person who becomes a new member of this retirement system shall, in
qualifying for retirement hereunder under this section, have five
or more years of service, all of which years shall be actual,
contributory ones. His or her annuity shall begin the first day of
the calendar month next following the month in which his or her
application for same is filed with the Board of Trustees on or
after his or her attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has ten or
more years of credited service in force and who has attained age
fifty-five as of the date of his or her separation, may, prior to
the effective date of his or her retirement, but not thereafter,
elect to receive the actuarial equivalent of his or her deferred
retirement annuity as a reduced annuity commencing on the first day
of any calendar month between his or her date of separation and his
or her attainment of age sixty-two years and payable throughout his
or her life.
(c) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has twenty or
more years of credited service in force may elect to receive the
actuarial equivalent of his or her deferred retirement annuity as
a reduced annuity commencing on the first day of any calendar month
between his or her fifty-fifth birthday and his or her attainment
of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, and pursuant to rules promulgated
by the Board, any member who has thirty or more years of credited
service in force, at least three of which are contributing service,
and who elects to take early retirement, which for the purposes of this subsection means retirement prior to age sixty, whether an
active employee or a separated employee at the time of application,
shall be is entitled to the full computation of annuity according
to section twenty-two of this article, as that section was in force
as of the date of retirement application, but with the reduced
actuarial equivalent of the annuity the member would have received
if his or her benefit had commenced at age sixty when he or she
would have been entitled to full computation of benefit without any
reduction.
(e) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, any member of the retirement system
may retire with full pension rights, without reduction of benefits,
if he or she is at least fifty-five years of age and the sum of his
or her age plus years of contributing service and limited credited
service, as defined in section two of this article, equals or
exceeds eighty. The member's annuity shall begin the first day of
the calendar month immediately following the calendar month in
which his or her application for the annuity is filed with the
Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article,
he or she shall receive a straight life annuity equal to one and five-tenths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her
credited service in force at the time of his or her retirement:
Provided, That the final average salary used in this calculation
does not include any lump sum payment for unused, accrued leave of
any kind or character. The credited service used for this
calculation may not include any period of limited credited service:
Provided, however, That after the first day of March, one thousand
nine hundred seventy, all members retired and all members retiring
shall receive a straight life annuity equal to two percent of his
or her final average salary multiplied by the number of years, and
fraction of a year, of his or her credited service, exclusive of
limited credited service in force at the time of his or her
retirement. In either event, upon his or her retirement he or she
has the right to elect an option provided for in section twenty-
four of this article. All annuity payments shall commence
effective the first day of the month following the month in which
a member retires or a member dies leaving a beneficiary entitled to
benefits and shall continue to the end of the month in which the
retirant or beneficiary dies, and the annuity payments may not be
prorated for any portion of a month in which a member retires or
retirant or beneficiary dies. Any member receiving an annuity
based in part upon limited credited service is not eligible for the supplements provided for in sections twenty-two-a through twenty-
two-d, inclusive, of this article.
(b) The annuity of any member of the Legislature who
participates in the retirement system as a member of the
Legislature and who retires under this article or of any former
member of the Legislature who has retired under this article
(including any former member of the Legislature who has retired
under this article and whose annuity was readjusted as of the first
day of March, one thousand nine hundred seventy, under the former
provisions of this section) shall be increased, from time to time,
during the period of his or her retirement when and if the
legislative compensation paid under section two, article two-a,
chapter four of this code to a member of the Legislature shall be
increased to the point where a higher annuity would be payable to
the retirant if he or she were retiring as of the effective date of
the latest increase in such legislative compensation, but on the
basis of his or her years of credited service to the date of his or
her actual retirement.
§5-10-22h. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in the system as calculated in
the annual actuarial valuation for the plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system shall be fully amortized over no more than the five
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the five-year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death
or disability of the system unless the actuarial accrued liability
of the plan is at least eighty-five percent funded as of the last
day of the prior fiscal year as determined in the actuarial
valuation for the plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year
as of the date the improvement is adopted by the Legislature. Any
additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized
over not more than ten years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the ten-year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
§5-10-23. Terminal payment following retirement.
For the purposes of this section, the term "accumulated net
benefit" means the aggregate amount of all benefits paid to or on
behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum
distributions paid to the member or to any other person on account
of the member's rights to benefits from the plan; (c) survivor
benefits paid to any person or persons on account of the member's rights to benefits from the plan; and (d) any other distributions
on account of the member's rights to benefits from the plan whether
they are paid in the nature of a refund of contributions, interest
on contributions, lump sum distributions, or annuity type benefits.
The amounts counted will be the amounts actually paid without
regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated
employee contributions" means all money the member has contributed
to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct
remittance by the member to repay contributions and interest
previously distributed and direct remittance by the member to pay
imputed contributions for periods which were not subject to
contributions but may be counted for benefit purposes under the
plan. The term accumulated employee contributions does not include
any amount credited under the provisions of the plan as interest on
member contributions.
For the purposes of this section, the term "member's account"
means the excess of the accumulated employee contributions over the
accumulated net benefit payments at any point in time and the term
"member" includes retirant. (a) This section provides for the
payment of the balance in the a retired member's account in the
event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully
exhausted. The expiration of such the rights to benefits would be
on the occasion of either the death of the retired member and any
and all beneficiaries who might have a claim to regular benefit
payments under the plan, for any form of benefit. Without
limitation, this would include the demise of beneficiaries of
survivor annuities and beneficiaries of any lump sum distributions
drawing benefits under a straight life annuity, or the death of a
survivor annuitant drawing benefits under any optional form of
benefit selected by the retired member, whichever occurs later.
(b) In the event that all claims to benefit benefits payable
to, or on behalf of, a retired member expire, and the accumulated
employee contributions exceed his or her the accumulated net
benefit payments paid to or on behalf of the retired member, the
balance in the retired member's account shall be paid to the person
or persons as the retired member has nominated by written
designation duly executed and filed with the board of trustees. If
there be is no designated person or persons surviving the retired
member following the expiration of claims, the excess of the
accumulated employee contributions over the accumulated net
benefit, if any, shall be paid to his or her the retired member's
estate. In no case may the plan retain any amount of the
accumulated employee contributions remaining in the member's account, but it shall retain interest earned on the same
accumulated employee contributions in the instance of a member's or
beneficiary's post-retirement death.
§5-10-26. Reexamination of disability retirants; reemployment;
adjustment of annuity for earnings.
(a) At least once each year during the first five years
following the retirement of a member on account of disability, as
provided in section twenty-five hereof of this article, and at
least once in each three-year period thereafter, the Board of
trustees may, and upon the retirant's application, may require a
disability retirant, who has not attained age sixty years, to
undergo a medical examination to be made by or under the direction
of a physician designated by the board, or to submit a statement
signed by the disability retirant's physician certifying continued
disability, or both, and a copy of the disability retirants's
annual statement of earnings. Should If the said retirant refuse
refuses to submit to such the medical examination or provide the
certification or statement in any such period, his or her
disability annuity may be discontinued by the Board until his
withdrawal of such refusal. Should such the retirant complies. If
the refusal continue continues for one year, all his the retirant's
rights in and to his the annuity may be revoked by the Board. If,
upon such medical examination of a disability retirant, the said physician reports to the Board that the retirant is physically able
and capable of resuming employment with a participating public
employer, he the retirant shall be returned to the employ of the
participating public employer from whose employment he or she
retired and his or her disability annuity shall terminate:
Provided, That the report of the said physician is concurred in by
the board Board concurs in the physician's report.
(b) A disability retirant who is returned to the employ of a
participating public employer shall again become a member of the
retirement system and his the retirant's credited service in force
at the time of his or her retirement shall be restored. to his
credit.
(c) If a disability retirant, who has not attained age sixty
years, becomes engaged in a gainful occupation, business or
employment, and the sum of his earnings from such occupation,
business or employment, and his disability annuity exceeds his
annual rate of compensation at the time of his retirement, his
disability annuity shall be reduced to an amount which when added
to the amount so earned by him shall equal his said annual rate of
compensation. If his earnings are later changed, his disability
annuity shall be correspondingly adjusted. If a review of the
disability retirant's annual statement of earnings or other
financial information as required by the Board determines that the disability retirant's earned income for the preceding year exceeds
the substantial gainful activity amount as defined by the United
States Social Security Administration, the disability retirant's
annuity shall be terminated by the Board, upon recommendation of
the Board's disability review committee, on the first day of the
month following the Board's action. Any person who wishes to
reapply for disability retirement and whose disability retirement
annuity has been terminated by the Board may do so within ninety
days of the effective date of termination by requesting an
examination at the applicant's expense by an appropriate medical
professional chosen by the Board.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: may at any time
prior to the effective date of his or her retirement, by written
declaration duly executed and filed with the board of trustees, in
the same manner as if he or she were then retiring from the employ
of a participating public employer, elect option A provided for in
section twenty-four of this article and nominate a beneficiary whom
the board finds to have had an insurable interest in the life of
the member. Prior to the effective date of his or her retirement, a member may revoke his or her election of option A and nomination
of beneficiary and he or she may again prior to his or her
retirement elect option A and nominate a beneficiary as provided in
this subsection. Upon the death of a member who has an option A
election in force, his or her beneficiary, if living, shall
immediately receive an annuity computed in the same manner in all
respects as if the same member had retired the day preceding the
date of his or her death, notwithstanding that he or she might not
have attained age sixty years, and elected the said option A. If
at the time of his or her retirement a member has an option A
election in force, his or her election of option A and nomination
of beneficiary shall thereafter continue in force. (1) Dies
without leaving a surviving spouse; but (2) leaves surviving him or
her a child who is financially dependent on the member by virtue of
a permanent mental or physical disability upon evidence
satisfactory to the Board; and (3) has named the disabled child as
sole beneficiary, the disabled child shall immediately receive an
annuity computed in the same manner in all respects as if the
member had: (1) Retired the day preceding the date of his or her
death, notwithstanding that he or she might not have attained age
sixty or sixty-two years, as the case may be; (2) elected option A
provided for in section twenty-four of this article; and (3)
nominated his or her disabled child as beneficiary. As an alternative to annuity option A, a A member or former member with
ten or more years of credited service, who does not leave surviving
him or her a spouse or a disabled child, may elect to have the
preretirement death benefit paid as a return of accumulated
contributions in a lump sum amount to any beneficiary or
beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of
credited service, or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies; and (2)
leaves a surviving spouse, the surviving spouse shall immediately
receive an annuity computed in the same manner in all respects as
if the said the member had: (1) Retired the day preceding the date
of his or her death, notwithstanding that he or she might not have
attained age sixty or sixty-two years, as the case may be; (2)
elected option A provided for in section twenty-four of this
article; and (3) nominated his or her surviving spouse as
beneficiary. However, the surviving spouse shall have the right to
waive the annuity provided for in this section: Provided, That he
or she executes a valid and notarized waiver on a form provided by
the retirement Board and that the member or former member attests
to the waiver. If the waiver is presented to and accepted by the
retirement Board, the member or former member shall may nominate a beneficiary who has an insurable interest in the member's or former
member's life. As an alternative to annuity option A, the member
or former member may elect to have the preretirement death benefit
paid as a return of accumulated contributions in a lump sum amount
to any beneficiary or beneficiaries he or she chooses in the event
a waiver, as provided for in this section, has been presented to
and accepted by the retirement Board.
(c) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving surviving him or her a spouse; but (2) leaves surviving him
or her an infant child or children; and (3) does not have a
beneficiary nominated as provided in subsection (a) of this
section, the infant child or children shall be are entitled to an
annuity to be calculated as follows: The annuity reserve shall be
calculated as though the member had retired as of the date of his
or her decease and elected a straight life annuity and the amount
of the annuity reserve shall be paid in equal monthly installments
to said the member's infant child or children until the child or
children attain age twenty-one or sooner marry or become
emancipated; however, in no event shall any child or children
receive more than two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of
the member and the amount of the annuity shall remain constant
during the period of payment. The annual amount of the annuities
payable by this section shall not exceed sixty percent of the
deceased member's final average salary.
(d) In the event any member or former member does not have ten
or more years of credited service, no preretirement death annuity
may be authorized, owed or awarded under this section.
§5-10-31. Employers accumulation fund; employers contributions.
(a) The employers accumulation fund is hereby continued. It
shall be the fund in which shall be accumulated the contributions
made by the participating public employers to the retirement system
and from which transfers shall be made as provided in this section.
(b) Based upon the provisions of section thirteen of this
article, the participating public employers' contributions to the
retirement system, as determined by the Consolidated Public
Retirement Board by legislative rule promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, shall be a percent of the members' total annual compensation
related to benefits under this retirement system. In determining
the amount, the Board shall give consideration to setting the
amount at a sum equal to an amount which, if paid annually by the
participating public employers, will be sufficient to provide for the total normal cost of the benefits expected to become payable to
all members and to amortize any unfunded liability found by
application of such the actuarial funding method as shall be chosen
for such that purpose by the Consolidated Public Retirement Board,
over such a period of years as shall be deemed determined
actuarially appropriate. When proposing a rule for promulgation
which relates to the amount of employer contribution, the Board may
promulgate emergency rules by emergency pursuant to the provisions
of article three, chapter twenty-nine-a of this code, if the
inability of the Board to increase employer contributions will
detrimentally affect the actuarial soundness of the retirement
system. A signed statement from the state actuary will shall
accompany the statement of facts and circumstances constituting an
emergency which must shall be filed in the State Register. For
purposes of this section, subdivision (2), subsection (b), section
fifteen-a, article three, chapter twenty-nine-a of this code shall
is not be applicable to the Secretary of State's determination of
whether an emergency rule should be approved.
In no year may the total of the contributions provided for in
this section, to be paid by any participating public employer,
exceed ten and five-tenths percent of the total payroll for the
members in the employ of such participating public employer for the
preceding fiscal year.
§5-10-44. Correction of errors.
Should If any change or employer error in the records of any
participating public employer or the retirement system result
results in any person receiving from the system more or less than
he or she would have been entitled to receive had the records been
correct, the Board of trustees shall correct such the error, and as
far as is practicable shall adjust the payment of the benefit in
such a manner that the actuarial equivalent of the benefit to which
such the person was correctly entitled shall be paid. Any employer
error resulting in an underpayment to the retirement system may be
corrected by the employee remitting the required employee
contribution and the participating public employer remitting the
required employer contribution. Interest shall accumulate in
accordance with the Legislative Rule 162 CSR 7 concerning
retirement board refund, reinstatement and loan interest factors,
and any accumulating interest owed on the employee and employer
contributions resulting from the employer error shall be the
responsibility of the participating public employer. The
participating public employer may remit total payment and the
employee reimburse the participating public employer through
payroll deduction over a period equivalent to the time period
during which the employer error occurred.
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
As used in this article:
(a) "Retirement plan" or "plan" means the Public Employees
Retirement Act, pursuant to article ten of this chapter; each
municipal employees retirement plan, pursuant to article twenty-
two, chapter eight of this code; each policemen's and firemen's
pension and relief fund, pursuant to article twenty-two, chapter
eight of this code; the West Virginia State Police Death,
Disability and Retirement Fund of the West Virginia State Police,
pursuant to article two, chapter fifteen of this code; the West
Virginia State Police Retirement System, pursuant to article two-a,
chapter fifteen of this code; the State Teachers Retirement System,
pursuant to article seven-a, chapter eighteen of this code; the
Teachers Defined Contribution Retirement System, pursuant to
article seven-b, chapter eighteen of this code; the Deputy Sheriff
Retirement System, pursuant to article fourteen-d, chapter seven of
this code; supplemental and additional retirement plans, pursuant
to section four-a, article twenty-three, chapter eighteen of this
code; the Judges' Retirement System, pursuant to article nine,
chapter fifty-one of this code; and any other plan established
pursuant to this code for the payment of pension, annuity,
disability or other benefits to any person by reason of his or her
service as an officer or employee of this state or of any political subdivision, agency or instrumentality thereof, whenever such the
plan is supported in whole or in part by public funds.
(b) "Beneficiary" means any person eligible for or receiving
benefits on account of the service for a public employer by a
participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other
benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective
date of this article in any federal or state court of record
whether following a plea of guilty, not guilty or nolo contendere,
and whether or not the person convicted was serving as an officer
or employee of a public employer at the time of the conviction.
(e) "Less than honorable service" means:
(1) Impeachment and conviction of a participant under the
provisions of section nine, article IV of the Constitution of West
Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct
related to his or her office or employment which he or she
committed while holding such the office or during such the
employment; or
(3) Conduct of a participant which constitutes all of the
elements of a crime described in either of the foregoing
subdivision (1) or (2) but for which the participant was not convicted because:
(i) Having been indicted or having been charged in an
information for such the crime, he or she made a plea bargaining
agreement pursuant to which he or she pleaded guilty to or nolo
contendere to a lesser crime: Provided, That the lesser crime is
a felony containing all the elements described in subdivision (1)
or (2) of this subsection; or
(ii) Having been indicted or having been charged in an
information for such the crime, he or she was granted immunity from
prosecution for the same; or crime.
(iii) Having been named as an unindicted coconspirator in an
indictment of another person for such a crime, which indictment
resulted in the conviction of such other person, he or she was not
prosecuted for such crime or conspiracy therefor.
(f) "Participant" means any person eligible for or receiving
any benefit under a retirement plan on account of his or her
service as an officer or employee for a public employer.
(g) "Public employer" means the State of West Virginia and any
political subdivision, agency or instrumentality thereof for which
there is established a retirement plan.
(h) "Supervisory board" or "Board" means the board of trustees
of the West Virginia Public Employees Retirement System
Consolidated Public Retirement Board; the board of trustees of any municipal retirement fund; the board of trustees of any policemen's
or firemen's retirement plan; the retirement board of the West
Virginia State Police; the state treasurer, state auditor and one
other member of the board of public works so designated by the
Governor to sit on the supervisory board of the judges' retirement
plan (who shall for the purpose of this article constitute the
board); the designated members of the state teachers retirement
system established pursuant to section five, article seven-a,
chapter eighteen of this code; the governing board of any
supplemental retirement plan instituted pursuant to authority
granted by section four-a, article twenty-three, chapter eighteen
of this code, and any other board, commission or public body having
the duty to supervise and operate any retirement plan.
§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.
(a) Whenever a supervisory board, upon receipt of a verified
complaint or otherwise, has reasonable cause to believe that a
participant rendered less than honorable service as defined in
section two of this article, it shall notify the affected
participant or beneficiary that it believes that the participant
rendered less than honorable service and that the participant or
beneficiary is thereby ineligible to receive benefits. No
supervisory board shall may issue such a notice:
(1) If more than one year has two years have elapsed since the
judgment of conviction upon which such the notice is based became
final; or
(2) In cases described in paragraph (3), subdivision
subsection (e), section two of this article, if more than one year
has two years have elapsed since, as the case may be: the plea
bargaining agreement, or the grant of immunity, or, in the event
the participant was named as an unindicted coconspirator for a
crime, the conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the
effective date of this article.
(b) The notice shall contain a concise statement of the
reasons why the Board believes that the participant rendered less
than honorable service and shall be made either by personal service
or by certified mail, return receipt requested, to the address
which the participant or beneficiary maintains for purposes of
corresponding with the Board. If notice is made by certified mail,
service shall be deemed considered complete upon mailing and a
completed receipt shall constitute proof proofs of the receipt
thereof of the notice. The notice shall inform the participant or
beneficiary that he or she has the right to demand that the Board
seek a determination in circuit court of his or her eligibility for
benefits and membership in the retirement plan by notifying the Board of such the demand within forty days. The notice shall also
inform the participant or beneficiary that the Board will terminate
the benefits in accordance with section four of this article and
refund the participant's contributions with interest less benefits
previously paid as provided in section six thereof if the
participant or beneficiary either waives the right to demand that
the Board take the matter before the circuit court or fails to
respond to the Board's notice within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorneys of the counties of this state shall,
within sixty days of a conviction or a plea agreement meeting the
definition of less than honorable service, report the conviction or
plea agreement to the executive director of the Board, including
with the report the indictment, plea agreement and any order
finding the defendant guilty.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered
employment after the effective date of this article shall be a
member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the
Board, so long as he or she remains employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the
effective date of this article shall within six months of that
effective date notify in writing both the county commission in the
county in which he or she is employed and the Board, of his or her
desire to become a member of the plan: Provided, That this time
period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
Supreme Court of Appeals in West Virginia Deputy Sheriffs'
Association, et al v. James L. Sims, et al, No. 25212: Provided,
however, That any deputy sheriff employed in covered employment on
the effective date of this article has an additional time period
consisting of the ten-day period following the day after which the
amended provisions of this section become law to notify in writing
both the county commission in the county in which he or she is
employed and the Board of his or her desire to become a member of
the plan. Any deputy sheriff who elects to become a member of the
plan ceases to be a member or have any credit for covered
employment in any other retirement system administered by the Board
and shall continue to be ineligible for membership in any other
retirement system administered by the Board so long as the deputy
sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the
time period from the first day of July, one thousand nine hundred ninety-eight, to the thirtieth day of January, one thousand nine
hundred ninety-nine, or who so elects during the ten-day time
period occurring immediately following the day after the day the
amendments made during the one thousand nine hundred ninety-nine
legislative session become law, to transfer from the Public
Employees Retirement System to the plan created in this article
shall contribute to the plan created in this article at the rate
set forth in section seven of this article retroactive to the first
day of July, one thousand nine hundred ninety-eight. Any deputy
sheriff who does not affirmatively elect to become a member of the
plan continues to be eligible for any other retirement system as is
from time to time offered to other county employees but is
ineligible for this plan regardless of any subsequent termination
of employment and rehire.
(c) Any deputy sheriff employed in covered employment on the
effective date of this article who has timely elected to transfer
into this plan as provided in subsection (b) of this section shall
be given credited service at the time of transfer for all credited
service then standing to the deputy sheriff's service credit in the
Public Employees Retirement System regardless of whether the
credited service (as that term is defined in section two, article
ten, chapter five of this code) was earned as a deputy sheriff.
All the credited service standing to the transferring deputy sheriff's credit in the Public Employees Retirement Fund System at
the time of transfer into this plan shall be transferred into the
plan created by this article, and the transferring deputy sheriff
shall be given the same credit for the purposes of this article for
all service transferred from the Public Employees Retirement System
as that transferring deputy sheriff would have received from the
Public Employees Retirement System as if the transfer had not
occurred. In connection with each transferring deputy sheriff
receiving credit for prior employment as provided in this
subsection, a transfer from the Public Employees Retirement System
to this plan shall be made pursuant to the procedures described in
section eight of this article: Provided, That a member of this
plan who has elected to transfer from the Public Employees
Retirement System into this plan pursuant to subsection (b) of this
section may not, after having transferred into and become an active
member of this plan, reinstate to his or her credit in this plan
any service credit relating to periods of nondeputy sheriff service
which were withdrawn from the Public Employees Retirement System
prior to his or her elective transfer into this plan.
(c) (d) Any deputy sheriff who was employed as a deputy
sheriff prior to the effective date of this article, but was not
employed as a deputy sheriff on the effective date of this article,
shall become a member upon rehire as a deputy sheriff. For purposes of this section subsection, the member's years of service
and credited service in the Public Employees Retirement System
prior to the effective date of this article shall not be counted
for any purposes under this plan unless: (1) The deputy sheriff
has not received the return of his or her accumulated contributions
in the Public Employees Retirement fund System pursuant to section
thirty, article ten, chapter five of this code; or (2) the
accumulated contributions returned to the member from the Public
Employees Retirement System have been repaid pursuant to section
thirteen of this article. If the conditions of subdivision (1) or
(2) of this subsection are met, all years of the deputy sheriff's
covered employment shall be counted as years of service for the
purposes of this article. Each transferring deputy sheriff shall
be given credited service for the purposes of this article for all
covered employment transferred from the public employees retirement
system regardless of whether the credited service (as that term is
defined in section two, article ten, chapter five of this code) was
earned as a deputy sheriff. All service in the public employees
retirement system accrued by a transferring deputy sheriff shall be
transferred into the plan created by this article and the
transferring deputy sheriff shall be given the same credit for the
purposes of this article for all covered service which is
transferred from the public employees retirement system as that transferring deputy sheriff would have received from the public
employees retirement system if the transfer had not occurred. In
connection with each deputy sheriff receiving credit for prior
employment provided in this subsection, a transfer from public
employees retirement system to this plan shall be made pursuant to
the procedures described in section eight of this article.
(d) (e) Once made, the election made under provided for in
this section is irrevocable. All deputy sheriffs first employed
after the effective date and deputy sheriffs electing to become
members as described in this section shall be members as a
condition of employment and shall make the contributions required
by section seven of this article.
(e) (f) Notwithstanding any other provisions of this article,
any individual who is a leased employee shall is not be eligible to
participate in the plan. For purposes of this plan, a "leased
employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or similar organization. If a question arises
regarding the status of an individual as a leased employee, the
Board has final power to decide the question.
§7-14D-7. Members' contributions; employer contributions.
(a) There shall be deducted from the monthly salary of each
member and paid into the Fund an amount equal to eight and one-half percent of his or her monthly salary. Any active member who has
concurrent employment in an additional job or jobs and the
additional employment requires the deputy sheriff to be a member of
another retirement system which is administered by the Consolidated
Public Retirement Board pursuant to article ten-d, chapter five of
this code shall contribute to the fund the sum of eight and
one-half percent of his or her monthly salary earned as a deputy
sheriff as well as the sum of eight and one-half percent of his or
her monthly salary earned from any additional employment which
additional employment requires the deputy sheriff to be a member of
another retirement which is administered by the Consolidated Public
Retirement Board pursuant to article ten-d, chapter five of this
code. An additional amount shall be paid to the Fund by the county
commission of the county in which the member is employed in covered
employment in an amount determined by the Board: Provided, That in
no year may the total of the contributions provided for in this
section, to be paid by the county commission, exceed ten and
one-half percent of the total payroll for the members in the employ
of the county commission for the preceding fiscal year. If the
Board finds that the benefits provided by this article can be
actually funded with a lesser contribution, then the Board shall
reduce the required member or employer contributions or both. The
sums withheld each calendar month shall be paid to the Fund no later than ten fifteen days following the end of the calendar
month.
(b) Any active member who has concurrent employment in an
additional job or jobs and the additional employment requires the
deputy sheriff to be a member of another retirement system which is
administered by the Consolidated Public Retirement Board pursuant
to article ten-d, chapter five of this code shall make an
additional contribution to the Fund of eight and one-half percent
of his or her monthly salary earned from any additional employment
which requires the deputy sheriff to be a member of another
retirement which is administered by the Consolidated Public
Retirement Board pursuant to said article. An additional amount
shall be paid to the Fund by the concurrent employer for which the
member is employed in an amount determined by the Board: Provided,
That in no year may the total of the contributions provided in this
section, to be paid by the concurrent employer, exceed ten and
one-half percent of the monthly salary of the employee. If the
Board finds that the benefits provided by this article can be
funded with a lesser contribution, then the Board shall reduce the
required member or employer contributions or both. The sums
withheld each calendar month shall be paid to the Fund no later
than fifteen days following the end of the calendar month.
§7-14D-13. Refunds to certain members upon discharge or resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the Board, entitled to receive from the
Fund the member's accumulated contributions. Except as provided in
subsection (b) of this section, upon withdrawal the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member of this plan who withdraws accumulated
contributions from either this plan or the public employees
retirement system and thereafter becomes reemployed ceases
employment in covered employment and active participation in this
plan, and who thereafter becomes reemployed in covered employment
shall may not receive any credited service for any prior withdrawn
accumulated contributions from either this plan or the Public
Employees Retirement System relating to the prior covered
employment unless following his or her return to covered employment
and active participation in this plan, the member redeposits in the
fund this plan the amount of the withdrawn accumulated
contributions submitted on salary earned while a deputy sheriff,
together with interest on the accumulated contributions at the rate
determined by the Board from the date of withdrawal to the date of
redeposit. Upon repayment he or she shall receive the same credit
on account of his or her former service in covered employment as if no refund had been made. The repayment authorized by this
subsection shall be made in a lump sum within sixty months of the
deputy sheriff's reemployment in covered employment or if later,
within sixty months of the effective date of this article.
(c) A member of this plan who has elected to transfer from the
Public Employees Retirement System into this plan pursuant to
subsection (b), section five of this article may not, after having
transferred into and become an active member of this plan,
reinstate to his or her credit in this plan any service credit
relating to periods of nondeputy sheriff service which were
withdrawn from the Public Employees Retirement System plan prior to
his or her elective transfer into this plan.
(c) (d) Every member who completes sixty months of covered
employment is eligible, upon cessation of covered employment, to
either withdraw his or her accumulated contributions in accordance
with subsection (a) of this section, or to choose not to withdraw
his or her accumulated contribution and to receive retirement
income payments upon attaining normal retirement age.
(d) (e) Notwithstanding any other provision of this article,
forfeitures under the plan shall not be applied to increase the
benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan may borrow from the plan no more than
one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars
nor more than eight thousand dollars: Provided, That the maximum
amount of any loan shall not exceed the lesser of the following:
(1) Eight thousand dollars; or (2) fifty percent of his or her
accumulated contributions. No member is eligible for more than one
outstanding loan at any time. No loan may be made from the plan if
the Board determines that the loans constitute more than fifteen
percent of the amortized cost value of the assets of the plan as of
the last day of the preceding plan year. The Board may discontinue
the loans any time it determines that cash flow problems might
develop as a result of the loans. Each loan shall be repaid
through monthly installments over periods of six through sixty
months and carry interest on the unpaid balance and an annual
effective interest rate that is two hundred basis points higher
than the most recent rate of interest used by the Board for
determining actuarial contributions levels: Provided, however,
That interest charged shall be commercially reasonable in
accordance with the provisions of Section 72(p)(2) of the Internal
Revenue Code and federal regulations issued thereunder. Monthly
loan payments shall be calculated to be as nearly equal as possible
with all but the final payment being an equal amount. An eligible member may make additional loan payments or pay off the entire loan
balance at any time without incurring any interest penalty. At the
member's option, the monthly loan payment may include a level
premium sufficient to provide declining term insurance with the
plan as beneficiary to repay the loan in full upon the member's
death. If a member declines the insurance and dies before the loan
is repaid, the unpaid balance of the loan shall be deducted from
the lump sum insurance benefits payable under section twenty-one of
this article.
(b) A member with an unpaid loan balance who wishes to retire
may have the loan repaid in full by accepting retirement income
payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then
converting the remaining of the reserve to a monthly pension
payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due
thereon, shall at the option of the Retirement Board become due and
payable without further notice or demand upon the occurrence with
respect to the borrowing member of any of the following events of
default: (1) Any payment of principal and accrued interest on a
loan remains unpaid after the same they become due and payable
under the terms of the loan or after such the grace period as may
be established in the discretion of the Retirement Board; (2) the borrowing member attempts to make an assignment for the benefit of
creditors of his or her benefit under the retirement system; or (3)
any other event of default set forth in rules promulgated by the
Board pursuant to the authority granted in section one, article
ten-d, chapter five of this code: Provided, That any offset of an
unpaid loan balance shall be made only at such time as the member
is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Retirement Board may determine.
(e) Notwithstanding anything herein in this section to the
contrary, the loan program authorized by this section shall comply
with the provisions of Sections 72(p)(2) and 401 of the Internal
Revenue Code and the federal regulations issued thereunder. The
Retirement Board is authorized to may: (a) Apply and construe the
provisions of this section and administer the plan loan program in
such a manner as to comply with the provisions of Sections 72(p)(2)
and 401 of the Internal Revenue Code; (b) adopt plan loan policies
or procedures consistent with these federal law provisions; and (c)
take such any actions as it deems considers necessary or
appropriate to administer the plan loan program created hereunder
under this section in accordance with these federal law provisions.
The Retirement Board is further authorized in connection with the plan loan program to take any actions that may at any time be
required by the Internal Revenue Service regarding compliance with
the requirements of Section 72(p)(2) or 401 of the Internal Revenue
Code, notwithstanding any provision in this article to the
contrary.
(f) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any deputy sheriff who becomes a member of the Deputy Sheriff
Retirement System on or after the first day of July, two thousand
five.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 8. PENSION LIABILITY REDEMPTION.
§12-8-2. Declaration of policy; legislative findings; legislative
intent.
The Legislature finds and declares that:
(a) The Legislature has established a number of pension
systems, including the Death, Disability and Retirement Fund of the
West Virginia State Police established in article two, chapter
fifteen of this code; the Judges' Retirement System established in
article nine, chapter fifty-one of this code; and the Teachers
Retirement System established in article seven-a, chapter eighteen
of this code, each of which is a trust for the benefit of the
participating public employees.
(b) The supreme court of appeals of West Virginia has ruled
that the Legislature is obligated to fund these pension systems on
an actuarially sound basis and that pension system obligations are
legitimate debts of the state.
(c) As a result of financial distress that occurred in the
state during the 1980s, the death, disability and retirement fund
of the West Virginia State Police, the judges' retirement system
and the teachers retirement system each has a significant unfunded
actuarial accrued liability which is being amortized over a term of
years ending no later than two thousand thirty-four through annual
appropriations in addition to amounts appropriated annually for the
normal cost contribution to these pension systems.
(d) The supreme court of appeals has ruled that the unfunded
actuarial accrued liability of pension systems is a public debt of
the state that must be repaid.
(e) The unfunded actuarial accrued liability of each pension
system is a previous liability of the state. The supreme court of
appeals has held that the Legislature may choose to redeem a
previous liability of the state through the issuance of bonds.
(f) This article provides for the redemption of the unfunded
actuarial accrued liability of each pension system, which is a
previous liability of the state, through the issuance of bonds for
the purpose of: (i) Providing for the safety and soundness of the pension systems; and (ii) redeeming each such previous liability of
the pension systems in order to realize realizing savings over the
remaining term of the amortization schedules of the unfunded
actuarial accrued liabilities and thereby achieve budgetary
savings.
§12-8-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Bonds" means bonds, notes, refunding notes and bonds or
other obligations of the state issued by the Governor pursuant to
this article.
(2) "Consolidated Public Retirement Board" means the Board
created to administer all public retirement plans in this state
under article ten-d, of chapter five of this code and any board or
agency that succeeds to the powers and duties of the Consolidated
Public Retirement Board.
(3) "Costs" include, but are not limited to, amounts necessary
to fund any capitalized interest funds and any reserve funds, any
costs relating to the issuance and determination of the validity of
the bonds, fees for obtaining bond insurance, credit enhancements
or liquidity facilities, administrative costs, fees incurred
pursuant to subsection (f), section five of this article and costs
attributable to the agreements described in section six of this article.
(4) "Death, Disability and Retirement Fund" means the Death,
Disability and Retirement Fund of the department of public safety
West Virginia State Police created by article two, chapter fifteen
of this code.
(5) "Department of Administration" means the Department
established pursuant to article one, chapter five-a of this code
and any board or agency that succeeds to the powers and duties of
the Department of Administration.
(6) "Executive order" means an executive order issued by the
Governor to authorize the issuance of bonds as provided in this
article.
(7) "Investment Management Board" means the Board established
under article six, chapter twelve of this code, and any board or
agency that succeeds to the powers and duties of the Investment
Management Board.
(8) "Judges' Retirement System" means the Judicial Retirement
System created under article nine, chapter fifty-one of this code.
(9) "Obligation holders" means any holder or owner of any
bond, any trustee or other fiduciary for any such holder, or any
provider of a letter of credit, policy of bond insurance, surety,
or other credit enhancement or liquidity facility or swap relating
to any bond.
(10) "Pension Liability Redemption Fund" means the special
account in the State Treasury created pursuant to subsection (a),
section eight of this article.
(11) "Pension liability redemption payments" means: (a) The
principal of, premium, if any, and interest on any outstanding
bonds issued pursuant to this article; and (b) any other amounts
required to be paid pursuant to the terms of any outstanding bonds,
any indenture authorized pursuant to this article and any other
agreement entered into between the Governor and any obligation
holder.
(12) "Pension systems" means the Judges' Retirement System,
the Death, Disability and Retirement Fund and the Teachers
Retirement fund System.
(13) "Refund" or "refunding" means the issuance and sale of
bonds the proceeds of which are used or are to be used for the
payment, defeasance or redemption of outstanding bonds upon or
prior to maturity.
(14) "Refunding bonds" means bonds issued for the payment,
defeasance or redemption of outstanding bonds upon or prior to
maturity.
(15)"Teachers Retirement System" means the retirement system
established in article seven-a, chapter eighteen of this code.
(16) "True interest cost" means the interest rate that, when compounded at time intervals consistent with the structure of the
bond issue and used to discount the payments of principal of and
interest on the bonds, causes such discounted principal and
interest payments to equal the purchase price of the bonds. To
ensure that the costs of issuance of the bonds are included in the
true interest cost, the costs of issuance shall be deducted from
the purchase price of the bonds before calculating the interest
rate.
(17) "Normal cost" means the value of benefits accruing for
the current valuation year under the actuarial cost method.
(18) (17) "Actuarial cost method" means a mathematical process
in which the cost of benefits projected to be paid after a period
of active employment has ended is allocated over the period of
active employment during which such the benefits are earned.
(19) (18) "Unfunded actuarial accrued liability" means the
aggregate of the unfunded actuarial accrued liabilities of the
pension systems, with the unfunded actuarial accrued liability of
each pension system being calculated in an actuarial valuation
report provided by the Consolidated Public Retirement Board to the
Department of Administration pursuant to section four of this
article.
(19) "West Virginia State Police Retirement System" means the
retirement system established in article two-a, chapter fifteen of this code.
(20) "West Virginia Public Employees Retirement System" means
the retirement system established in article ten, chapter five of
this code.
(21) "West Virginia state-sponsored pension systems" means the
pension systems as defined in subdivision (12) of this section, the
West Virginia Public Employees Retirement System and the West
Virginia State Police Retirement System.
§12-8-4. Issuance of bonds; determination of unfunded actuarial
accrued liability.
(a) Notwithstanding any other provision of this code and
pursuant to section four, article ten of the constitution of West
Virginia, the The Governor shall have the power may, as provided by
this article, to issue the bonds authorized in this section at a
time or times as provided by a resolution adopted by the
Legislature to redeem a previous liability of the state by funding
fund all or a portion of the unfunded actuarial accrued liability,
such the bonds to be payable from and secured by moneys deposited
in the Pension Liability Redemption Fund. Any bonds issued
pursuant to this article, other than refunding bonds, shall be
issued no later than five years after the date of adoption of the
resolution of the Legislature authorizing the issuance of the bonds
referred to in this section.
(b) The aggregate principal amount of bonds issued pursuant to
the provisions of this article is limited to no more than the
lesser of the following: (1) The principal amount necessary, after
deduction of costs, underwriter's discount and original issue
discount, if any, to fund not in excess of one hundred percent of
the unfunded actuarial accrued liability of the Death, Disability
and Retirement Fund of the division of public safety West Virginia
State Police established in article two, chapter fifteen of this
code, one hundred percent of the unfunded actuarial accrued
liability of the Judges' Retirement System established in article
nine, chapter fifty-one of this code, and ninety-five percent of
the unfunded actuarial accrued liability of the Teachers Retirement
System established in article seven-a, chapter eighteen of this
code, as certified by the Consolidated Public Retirement Board to
the Department of Administration pursuant to subsection (e) of this
section; or (2) three five billion nine five hundred million
dollars; but in no event shall the aggregate principal amount of
bonds issued exceed the principal amount necessary, after deduction
of costs, underwriter's discount and original issue discount, if
any, to fund not in excess of the total unfunded actuarial accrued
liability, as certified by the Consolidated Public Retirement Board
to the Department of Administration pursuant to subsection (e) of
this section.
(c) The costs of issuance, excluding fees for ratings, bond
insurance, credit enhancements and liquidity facilities, plus
underwriter's discount and any other costs associated with the
issuance shall not exceed, in the aggregate, the sum of one percent
of the aggregate principal amount of bonds issued. All such costs
shall be subject to the review and approval of a majority of the
members of a review committee. The review committee shall consist
of the state treasurer and four persons having skill and experience
in bond issuance, appointed by the governor.
(d) The limitation on the aggregate principal amount of bonds
provided in this section shall not preclude the issuance of bonds
from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the
Department of Administration, the Consolidated Public Retirement
Board shall provide the Department of Administration with a
certified statement of the amount of each pension system's unfunded
actuarial accrued liability calculated in an actuarial valuation
report that establishes the amount of the unfunded actuarial
accrued liability as of a date specified by the Department of
Administration, based upon each pension system's most recent
actuarial valuation as completed by the Consolidated Public
Retirement Board.
(f) No later than fifteen days after receipt of a request from the Governor, the Department of Administration shall provide the
Governor with a certification of the maximum aggregate principal
amount of bonds that may be issued at that time pursuant to
subsection (b) of this section.
(g) Prior to any request of the governor that the Legislature
prepare and consider a resolution authorizing the issuance of
bonds, the bonds shall be authorized by a majority of the members
of the review committee described in subsection (c) of this
section.
§12-8-5. Method of bond issuance; manner of sale of bonds;
authority of Department of Administration.
(a) The governor shall, by executive message, request the
Legislature prepare and consider a resolution authorizing the
issuance of bonds described in section four of this article. The
executive message shall specify the maximum costs associated with
the issue. Upon the adoption of a resolution by the Legislature
authorizing the issuance of the bonds in the amount and upon the
terms specified in the resolution, the bonds shall be authorized by
an executive order issued by the Governor. The executive order
shall be received by the Secretary of State and filed in the State
Register pursuant to section three, article two, chapter
twenty-nine-a of this code. The Governor, either in the executive
order authorizing the issuance of the bonds or by the execution and delivery by the Governor of a trust indenture or agreement
authorized in such the executive order, shall stipulate the form of
the bonds, whether the bonds are to be issued in one or more
series, the date or dates of issue, the time or times of maturity,
which shall not exceed the longest remaining term of the current
amortization schedules for the unfunded actuarial accrued
liability, the rate or rates of interest payable on the bonds,
which may be at fixed rates or variable rates and which interest
may be current interest or may accrue, the denomination or
denominations in which the bonds are issued, the conversion or
registration privileges applicable to some or all of the bonds, the
sources and medium of payment and place or places of payment, the
terms of redemption, any privileges of exchangeability or
interchangeability applicable to the bonds, and the entitlement of
obligation holders to priorities of payment or security in the
amounts deposited in the pension liability redemption fund. Bonds
shall be signed by the Governor and attested by the Secretary of
State, by either manual or facsimile signatures. The Governor
shall not sign the bonds unless he shall first make a written
finding, which shall be transmitted to the state treasurer, the
Secretary of State, the speaker of the House of Delegates and the
president of the Senate, that: (i) The true interest cost of the
bonds is at least thirty basis points less than the assumed actuarial interest rate used to calculate the unfunded actuarial
accrued liability; and (ii) that the issuance of the bonds will not
in any manner cause a down grade or reduction in the state's
general obligation credit rating by standard bond rating agencies.
(b) The bonds may be sold at public or private sale at a price
or prices determined by the Governor. The Governor is authorized
to may enter into any agreements necessary or desirable to
effectuate the purposes of this section, including agreements to
sell bonds to any person and to comply with the laws of any
jurisdiction relating thereto.
(c) The Governor, in the executive order authorizing the
issuance of bonds or by the execution and delivery by the Governor
of a trust indenture or agreement authorized in such the executive
order, may covenant as to the use and disposition of or pledge of
funds made available for pension liability redemption payments or
any reserve funds established pursuant to such the executive order
or established pursuant to any indenture authorized by such the
executive order. All costs may be paid by or upon the order of the
Governor from amounts received from the proceeds of the bonds and
from amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution
adopted by the Legislature authorizing the same.
(e) Neither the Governor, the Secretary of State nor any other person executing or attesting the bonds or any agreement authorized
in this article shall be are personally liable with respect to
payment of any pension liability redemption payments.
(f) (e) Notwithstanding any other provision of this code, and
subject to the approval of the review committee, the Department of
Administration, in the Department's discretion: (i) Shall select,
employ and compensate one or more persons or firms to serve as bond
counsel or cobond counsel who shall be responsible for the issuance
of a final approving opinion regarding the legality of the bonds
issued pursuant to this article; (ii) may select, employ and
compensate one or more persons or firms to serve as underwriter or
counderwriter for any issuance of bonds pursuant to this article;
and (iii) may select, employ and compensate one or more
fiduciaries, financial advisors and experts, other legal counsel,
placement agents, appraisers, actuaries and such any other
advisors, consultants and agents as may be necessary to effectuate
the purposes of this article. Notwithstanding the provisions of
article three, chapter five of this code, bond counsel may
represent the state in court, render advice and provide other legal
services as may be requested by the Governor or the Department of
Administration regarding any bond issuance pursuant to this article
and all other matters relating to the bonds.
(g) Notwithstanding any other provision of this code, and subject to the approval of the review committee, the state
treasurer, in the state treasurer's discretion shall select, employ
and compensate an independent person or firm to serve as special
counsel to the state treasurer to advise the state treasurer with
respect to the state treasurer's duties pursuant to this article.
§12-8-6. Contracts with obligation holders; provisions of bonds
and trust indentures and other agreements.
(a) The Governor may enter into contracts with obligation
holders and the Governor shall have the authority to comply fully
with the terms and provisions of any contracts made with obligation
holders.
(b) In addition and not in limitation to the other provisions
of this section, in connection with any bonds issued pursuant to
this article, the Governor may enter into: (i) Commitments to
purchase or sell bonds and bond purchase or sale agreements; (ii)
agreements providing for credit enhancement or liquidity, including
revolving credit agreements, agreements establishing lines of
credit or letters of credit, insurance contracts, surety bonds and
reimbursement agreements; (iii) agreements to manage interest rate
exposure and the return on investments, including interest rate
exchange agreements, interest rate cap, collar, corridor, ceiling
and floor agreements, option, rate spread or similar exposure
agreements, float agreements and forward agreements; (iv) stock exchange listing agreements; and (v) any other commitments,
contracts or agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and
as to the issuance of such the bonds, in escrow or otherwise,
provide for the replacement of lost, destroyed or mutilated bonds,
covenant against extending the time for the payment of bonds or
interest thereon on the bonds and covenant for the redemption of
bonds and provide the terms and conditions of such the redemption.
(d) Except as otherwise provided in any executive order or in
this article, the terms of the executive order and of this article
in effect on the date the bonds are issued shall constitute a
contract between the state and obligation holders. Any
representation, warranty or covenant made by the Governor in the
executive order, any indenture of trust or trust agreement
authorized by the executive order, any bond or any other contract
entered into pursuant to this article with any obligation holder
shall be a representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any
portion of them, the right to enforce the payment of the bonds or
agreements authorized in this article or any covenants securing or
relating to the bonds or such the agreements. The Governor may
prescribe the procedure, if any, by which the terms of any contract
with obligation holders may be supplemented, amended or abrogated, prescribe which supplements or amendments will require the consent
of obligation holders and the portion of obligation holders
required to effect such the consent and prescribe the manner in
which such the consent may be given.
§12-8-7. Proceeds from the sale of bonds.
(a) The proceeds from the sale of bonds, other than refunding
bonds, issued pursuant to this article, after payment of any costs
payable at time of issuance of such the bonds, shall be paid to the
Consolidated Public Retirement Board to redeem the unfunded
actuarial accrued liability, which is a previous liability of the
state, by funding fund the amount of the unfunded actuarial accrued
liability for the pension systems provided for by such the bonds.
(b) From time to time Prior to the time of issuance, when
requested by the Department of Administration, the Investment
Management Board shall prepare and submit to the Governor, the
Speaker of the House of Delegates, the President of the Senate and
the Department of Administration the short-term and long-term
investment strategies that the Investment Management Board intends
to follow for investment of the plan assets of the pension systems,
as adjusted by the deposit of the proceeds of bonds issued pursuant
to this article and section six, article X of the Constitution of
West Virginia.
(c) Commencing with the fiscal year following the fiscal year during which a series of bonds is issued under this article and the
proceeds thereof are deposited into the applicable pension systems,
annual appropriations by the state into the teachers retirement
pension system required under other provisions of this code shall
equal the amount necessary to pay the normal cost and the scheduled
payment of the remaining unfunded actuarial accrued liability, if
any, of such pension system: Provided, That if such amount in any
one fiscal year is less than the members' required contributions to
such plan, as expressed as a percentage of members' payroll, the
state shall deposit into the pension liability redemption fund an
amount expressed as a percentage of members' payroll, representing
the difference between what the state contributes to such plan,
expressed as a percentage of members' payroll, and what the members
contribute to the plan, expressed as a percent of members' payroll.
§12-8-8. Continuation of Pension Liability Redemption Fund;
disbursements to pay pension liability redemption payments.
(a) There is hereby created continued a special account in the
State Treasury to be administered by the State Treasurer, which
shall be is designated and known as the "Pension Liability
Redemption Fund", into which shall be deposited any and all amounts
appropriated by the Legislature or funds from any other source
whatsoever which are made available by law for the purpose of
making pension liability redemption payments. All funds deposited to the credit of the Pension Liability Redemption Fund shall be
held in a separate account and all money belonging to the Fund
shall be deposited in the State Treasury to the credit of the
Pension Liability Redemption Fund.
(b) On or before the first day of November of each year, the
Department of Administration shall certify to the Governor and the
State Treasurer and deliver to the Speaker of the House of
Delegates and the President of the Senate a certification as to the
amount of pension liability redemption payments to be appropriated
for the next fiscal year in order to pay in full when due all
pension liability redemption payments that will become due during
the next fiscal year. Such The certification shall include the
amount and due date of each such pension liability redemption
payment. All moneys appropriated by the Legislature in accordance
with a certification made pursuant to this subsection shall be
deposited into the Pension Liability Redemption Fund.
(c) The State Treasurer shall pay to the trustee under the
trust indenture or agreement executed by the Governor all pension
liability redemption payments as and when due. Such The payments
shall be transferred by electronic funds transfer, unless some
other manner of funds transfer is specified by the Governor. No
payments shall be required for bonds that are defeased or bonds for
which a deposit sufficient to provide for all payments on the bonds has been made.
(d) There shall be created within the Pension Liability
Redemption Fund a subaccount into which there shall be deposited
annually by the legislature an amount not greater than the
aggregate amount certified by each system's actuary to represent
the difference between the pension liability redemption payments
and the annual amortization payments on the unfunded actuarial
accrued liability that would have been due for such fiscal year had
the bonds issued pursuant to this article not been issued. Upon
resolution passed by the Legislature, the Governor shall use funds
on deposit in the subaccount in the amount and upon the terms
specified in the resolution: (1) To reduce any remaining unfunded
actuarial accrued liability; or (2) to provide for the early
retirement of the bonds if possible.
§12-8-10. State pledges and covenants.
(a) The State of West Virginia covenants and agrees with the
obligation holders, and the indenture shall so state, that the
bonds issued pursuant to this article are issued to redeem a
previous liability of the state and shall therefore constitute a
direct and general obligation of the State of West Virginia; that
the pension liability redemption payments will be included in each
budget along with all other amounts for payment and discharge of
the principal of and interest on state debt; that the full faith and credit of the state is hereby pledged to secure the payment of
the principal of and interest on the bonds; and that annual state
taxes shall be collected in an amount sufficient to pay the pension
liability redemption payments as they become due and payable from
the Pension Liability Redemption Fund.
(b) The state hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that the state will not
limit or alter the rights, powers or duties vested in any state
official, or that state official's successors or assigns, and the
obligation holders in a way that will inhibit any state official,
or that state official's successors or assigns, from carrying out
such the state official's rights, powers or duties under this
article, nor limit or alter the rights, powers or duties of any
state official, or that state official's successors or assigns, in
any manner which would jeopardize the interest of any obligation
holder, or inhibit or prevent performance or fulfillment by any
state official, or that state official's successors or assigns,
with respect to the terms of any agreement made with any obligation
holder pursuant to section six of this article.
(c) The state hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that, while any of the
bonds are outstanding, should any increase of existing benefits or
the creation of new benefits under any of the pension systems, other than an increase in benefits or new benefits effected by
operation of law in effect on the effective date of this article,
cause any additional unfunded actuarial accrued liability in any of
the pension systems (calculated in an actuarially sound manner)
during any fiscal year, such additional unfunded actuarial accrued
liability of that pension system will be fully amortized over no
more than the five consecutive fiscal years following the date the
increase in benefits or new benefits become effective.
(d) The state hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that, while any of the
bonds are outstanding, should any additional unfunded actuarial
accrued liability in any of the pension systems (calculated in an
actuarially sound manner) occur during any fiscal year due to
changes in actuarial assumptions, changes in investment performance
or increases in benefits or additional benefits occurring by
operation of law in effect on the effective date of this article,
and such additional unfunded actuarial accrued liability persists
for a period of five consecutive fiscal years, the governor shall
submit to the Legislature a plan to fund such additional unfunded
actuarial accrued liability over a reasonable period.
(c) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, any changes in unfunded actuarial accrued liability in any of the West Virginia state-sponsored pension
systems resulting from the actual experience for that system
occurring during any fiscal year due to net differences between the
expected and actual experience for that year will be fully
amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net actuarial gain or loss to the Governor. The
certification shall be made on or before the thirty-first day of
January of each year. The net actuarial gain or loss for the
fiscal year shall be determined from the actuarial valuation
authorized by the Consolidated Public Retirement Board for each
plan completed at as of the first day of the following fiscal year.
Following the receipt of the certification of net actuarial gain or
loss, the Governor shall submit the amount of the amortization
payment or credit each year for the pension systems as part of the
annual budget submission or in an executive message to the
Legislature. The Consolidated Public Retirement Board shall
include the ten-year amortization in the determination of the
adequacy of the employer contribution percentage for the West
Virginia Public Employees Retirement System and West Virginia State
Police Retirement System.
(d) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the bonds are outstanding, if the unfunded actuarial accrued liability
of any of the West Virginia state-sponsored pension systems
increases or decreases due to changes in actuarial assumptions
adopted by the Consolidated Public Retirement Board for completion
of the annual actuarial valuation for any plan, the change shall be
fully amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net change due to changes in assumptions to the
Governor. The certification shall be made on or before the thirty-
first day of January of each year. Following the receipt of the
certification of change due to changes in actuarial assumptions,
the Governor shall submit the amount of the amortization payment
each year for the pension systems as part of the annual budget
submission or in an executive message to the Legislature. The
Consolidated Public Retirement Board shall include the ten-year
amortization in the determination of the adequacy of the employer
contribution percentage for the Public Employees Retirement System
and West Virginia State Police Retirement System.
(e) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding: (1) The state will not increase any
existing benefits or create any new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments from any of the West Virginia state-sponsored pension systems, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for each plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature; and (2) if any increase
of existing benefits or creation of new benefits for any retirees
or beneficiaries currently receiving monthly benefit payments under
any of the West Virginia state-sponsored pension systems, other
than an increase in benefits or new benefits effected by operation
of law in effect on the effective date of this article, causes any
additional unfunded actuarial accrued liability in any of the West
Virginia state-sponsored pension systems as calculated in the
annual actuarial valuation for each plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system will be fully amortized over no more than the five
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the
certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each
year for the pension systems as part of the annual budget
submission or in an executive message to the Legislature. The
Consolidated Public Retirement Board shall include the five-year
amortization in the determination of the adequacy of the employer
contribution percentage for the West Virginia Public Employees
Retirement System and West Virginia State Police Retirement System.
(f) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding that the computation of annuities or benefits
for active members due to retirement, death or disability as
provided for in the pension systems shall not be amended in any
manner that increases any existing benefits or provides for new
benefits.
(g) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, the state will not increase any existing
benefits or create any new benefits for active members due to
retirement, death or disability of the West Virginia Public
Employees Retirement System or the West Virginia State Police
Retirement System unless the actuarial accrued liability of the
plan is at least eighty-five percent funded as of the last day of
the prior fiscal year as determined in the actuarial valuation for the plan completed for the Consolidated Public Retirement Board as
of the first day of the following fiscal year as of the date the
improvement is adopted by the Legislature. Any additional unfunded
actuarial accrued liability due to any improvement in active
members benefits shall be fully amortized over not more than ten
years following the date the increase in benefits or new benefits
become effective as certified by the Consolidated Public Retirement
Board. The Consolidated Public Retirement Board shall include the
ten-year amortization in the determination of the adequacy of the
employer contribution percentage for the West Virginia Public
Employees Retirement System and West Virginia State Police
Retirement System.
§12-8-15. Operation of article.
Notwithstanding the effective date of this act of the
Legislature, this article shall not become operational and shall
have no force and effect until the day the people ratify an
amendment to the Constitution of this state authorizing pension
obligation bonds.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund", "plan" or "system" means the West Virginia Death,
Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the Board
to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State
Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subsection, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the Department but also cannot, considering his or her
age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (1) The work exists in the immediate area in which the
member lives; (2) a specific job vacancy exists; or (3) the member
would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund;
designating the Consolidated Public Retirement Board as
administrator of Fund.
(a) There shall be is continued the Death, Disability and Retirement Fund heretofore created for the benefit of members of
the division of public safety Department and any dependent of a
retired or deceased member thereof of the Department.
(b) There shall be deducted from the monthly payroll of each
member of the division of public safety Department and paid into
such the Fund six percent of the amount of his or her salary:
Provided, That beginning on the first day of July, one thousand
nine hundred ninety-four, there shall be deducted from the monthly
payroll of each member and paid into the Fund seven and one-half
percent of the amount of his or her salary: Provided, however,
That on and after the first day of July, one thousand nine hundred
ninety-five, there shall be deducted from the monthly payroll of
each member and paid into the Fund nine percent of the amount of
his or her salary. An additional twelve percent of the monthly
salary of each member of the division Department shall be paid by
the State of West Virginia monthly into such the fund out of the
annual appropriation for the division Department: Provided
further, That beginning on the first day of July, one thousand nine
hundred ninety-five, the state shall pay thirteen percent of the
monthly salary of each member into the Fund: And provided further,
That beginning on the first day of July, one thousand nine hundred
ninety-six, the state shall pay fourteen percent of the monthly
salary of each member into the Fund: And provided further, That on and after the first day of July, one thousand nine hundred
ninety-seven, the state shall pay fifteen percent of the monthly
salary of each member into the Retirement Fund. There shall also
be paid into the Fund amounts that have previously been collected
by the Superintendent of the division of public safety Department
on account of payments to members for court attendance and mileage,
rewards for apprehending wanted persons, fees for traffic accident
reports and photographs, fees for criminal investigation reports
and photographs, fees for criminal history record checks, fees for
criminal history record reviews and challenges or from any other
sources designated by the Superintendent. All moneys payable into
the Fund shall be deposited in the State Treasury and the Treasurer
and Auditor shall keep a separate account thereof on their
respective books.
(c) Notwithstanding any other provisions of this article,
forfeitures under the Fund shall not be applied to increase the
benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are hereby exempt
from any state or municipal tax; shall not be subject to execution,
garnishment, attachment or any other process whatsoever, with the
exception that the benefits or contributions under the Fund shall be subject to "qualified domestic relations orders" as that term is
defined in Section 414(p) of the Internal Revenue Code with respect
to governmental plans; and shall be unassignable except as is
provided in this article. The Death, Disability and Retirement
Fund shall be administered by the Consolidated Public Retirement
Board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death,
Disability and Retirement Fund, except such amounts as shall be
designated or set aside by the awards, shall be invested by the
State Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The Retirement Board shall retire any member of the
division of public safety Department when the member has both
attained the age of fifty-five years and completed twenty-five
years of service as a member of the division Department, including
military service credit granted under the provisions of section
twenty-eight of this article.
(b) The Retirement Board shall retire any member of the
division of public safety Department who has lodged with the
secretary Executive Director of the Consolidated Public Retirement
Board his or her voluntary petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service
as a member of the division Department (including military service credit granted under the provisions of section twenty-eight of this
article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
division Department (excluding military service credit granted
under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the division
Department (excluding military service credit granted under section
twenty-eight of this article.)
(c) When the Retirement Board retires any member under any of
the provisions of this section, the Board shall, by order in
writing, make an award directing that the member shall be is
entitled to receive annually and that there shall be paid to the
member from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of the member while in
status of retirement, one or the other of two amounts, whichever is
the greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer but less than twenty-five years as a member of the division
Department and shall be is retired under any of the provisions of
this section before he or she shall have has attained the age of
fifty years, payment of monthly installments of the amount of
retirement award to such the member shall commence on the date he
or she attains the age of fifty years. Beginning on the fifteenth
day of July, one thousand nine hundred ninety-four, in no event may
the provisions of section thirteen, article sixteen, chapter five
of this code be applied in determining eligibility to retire with
either immediate or deferred commencement of benefit.
(d) Any individual who is a leased employee shall is not be
eligible to participate in the Fund. For purposes of this Fund, a
"leased employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or other similar organization. If a question
arises regarding the status of an individual as a leased employee,
the Board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
(a) Every member of the division of public safety Department
who is fifty-five years of age or older and who is retired by the
Retirement Board under the provisions of section twenty-seven of
this article; every member of the division of public safety
Department who is retired by the Retirement Board under the provisions of section twenty-nine or thirty of this article; and
every surviving spouse or other beneficiary receiving a benefit
pursuant to section thirty-three or thirty-four of this article, is
eligible to receive an annual retirement annuity adjustment equal
to three and seventy-five hundredths percent of his or her
retirement award or surviving spouse award: Provided, That for any
person retiring on and after the fifteenth day of September, one
thousand nine hundred ninety-four, the annual retirement annuity
adjustment shall be equal to two percent of his or her retirement
award or award paid to a surviving spouse or other beneficiary.
Such The adjustments may not be retroactive. Yearly adjustments
shall begin upon the first day of July of each year. The annuity
adjustments shall be awarded and paid to the members from the
Death, Disability and Retirement Fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits as
provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant
to the provisions of section twenty-nine, thirty, thirty-three or
thirty-four of this article shall begin to receive the annual
annuity adjustment one year after the commencement of the benefit
on the next July first: Provided, That if the member has been
retired for less than one year when the first annuity adjustment is given on that July first, that first annuity adjustment will be a
pro rata share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military
service; credit toward retirement when member has joined armed
forces in time of armed conflict; qualified military service
.
(a) For purposes of this section, the term "active military
duty" means full-time active duty with the armed forces of the
United States, namely, the United States Air Force, Army, Coast
Guard, Marines or Navy; and service with the National Guard or
reserve military forces of any of such armed forces when the member
has been called to active full-time duty and has received no
compensation during the period of such duty from any person other
than the armed forces.
(b) Any member of the Department who has previously served on
active military duty shall be is entitled to and shall receive
credit on the minimum period of service required by law for
retirement pay from the service of the department of public safety
West Virginia State Police under the provisions of this article for
a period equal to the active military duty not to exceed five
years, subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under section thirty of this article, he or she has
actually served with the Department for twenty years exclusive of
his or her active military duty.
(c) The amount of retirement pay to which any such member is
entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the Department equal to the average monthly
salary which he or she actually received from the Department for
his or her total service with the Department exclusive of the
active military duty. The Superintendent is authorized to shall
transfer and pay into the Death, Disability and Retirement Fund
from moneys appropriated for the Department, a sum equal to
eighteen percent of the aggregate of the salaries on which the
retirement pay of all such members has been calculated and
determined for their periods of active military duty. In addition,
any person who, while a member of the Department was commissioned,
enlisted or inducted into the armed forces of the United States or,
being a member of the reserve officers' corps, was called to active
duty in said the armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in
World War II, or between the twenty-seventh day of June, one
thousand nine hundred fifty, and the close of the armed conflict in
Korea on the twenty-seventh day of July, one thousand nine hundred
fifty-three, between the first day of August, one thousand nine
hundred sixty-four, and the close of the armed conflict in Vietnam,
or during any other period of armed conflict by the United States
whether sanctioned by a declaration of war by the Congress or by
executive or other order of the President, shall be is entitled to
and shall receive credit on the minimum period of service required
by law for retirement pay from the service of the department of
public safety West Virginia State Police for a period equal to the
full time he or she has or shall, pursuant to such the commission,
enlistment, induction or call, have served with said the armed
forces subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That within ninety days after honorable discharge from the
armed forces he or she has presented himself or herself to the
Superintendent and offered to resume service as an active member of
the Department; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(d) That amount of retirement pay to which any such member
shall be is entitled shall be calculated and determined as if the
member has continued in the active service of the Department at the
rank or grade to him or her appertaining at the time of such the
commission, induction, enlistment or call, during a period
coextensive with the time the member served with the armed forces
pursuant to the commission, induction, enlistment or call. The
Superintendent of the Department is authorized to shall transfer
and pay each month into the Death, Disability and Retirement Fund
from moneys appropriated for the Department a sum equal to eighteen
percent of the aggregate of salary which all such members would
have been entitled to receive had they continued in the active
service of the Department during a period coextensive with the time
such the members served with the armed forces pursuant to the
commission, induction, enlistment or call: Provided, That the
total amount of military service credit allowable under this
section shall not exceed five years.
(e) Notwithstanding any of the preceding provisions of this
section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The Retirement Board
is authorized to may determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the Retirement Board in section one, article ten-d, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with Section 414(u) of the Internal
Revenue Code.
§15-2-29. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Any member of the division Department who has been or
shall become physically or mentally permanently not yet entered
retirement status on the basis of age and service and who becomes
partially disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members of the division Department and incurred
pursuant to or while such the member was or shall be engaged in the
performance of his or her duties as a member of the division
Department shall, if, in the opinion of the Retirement Board, he or
she is by reason of such that cause probably permanently unable to
perform adequately the duties required of him or her as a member of the division Department, but is able to engage in any other gainful
employment in a field other than law enforcement, be retired from
active service by the Retirement Board. The member thereafter
shall be is entitled to receive annually and there shall be paid to
such the member from the Death, Disability and Retirement Fund in
equal monthly installments during the lifetime of such the member;
or until the member attains the age of fifty; or until such the
disability shall sooner terminate terminates, one or the other of
two amounts, whichever is greater:
(1) An amount equal to two thirds of the salary received in
the preceding twelve-month employment period: Provided, That if
the member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the
benefit provided for in subsection (c), section twenty-seven of
this article as it would apply to his or her aggregate career
earnings from the division Department through the day immediately
preceding his or her disability. The recalculation of benefit upon
a member attaining age fifty shall be deemed considered to be a
retirement under the provisions of section twenty-seven of this
article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article: Provided,
That a member who is partially disabled under this article may not,
while in receipt of benefits for partial disability, be employed as
a law-enforcement officer: Provided, however, That a member
retired on partial disability under this article may serve as an
elected sheriff or appointed chief of police in the state without
a loss of disability retirement benefits so long as the elected or
appointed position is shown, to the satisfaction of the Board, to
require the performance of administrative duties and functions
only, as opposed to the full range of duties of a law-enforcement
officer.
(c) If any member not yet in retirement status on the basis of
age and service is found by the Board to be permanently and totally
disabled as the result of a physical or mental impairment shall
become permanently physically or mentally disabled by injury,
illness or disease resulting from any occupational risk or hazard
inherent in or peculiar to the services required of members of the
division Department and incurred pursuant to or while such the
member was or shall be engaged in the performance of his or her
duties as a member of the division, to the extent that such member
is or shall be incapacitated ever to engage in any gainful
employment such Department, the member shall be is entitled to
receive annually and there shall be paid to such the member from the Death, Disability and Retirement Fund in equal monthly
installments during the lifetime of such the member or until such
the disability shall sooner terminate terminates, an amount equal
to the amount of the salary received by the member in the preceding
twelve-month employment period: Provided, That in no event may
such the amount be less than fifteen thousand dollars per annum,
unless required by section forty of this article: Provided,
however, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit.
(c) (d) The Superintendent is authorized to may expend moneys
from funds appropriated for the division Department in payment of
medical, surgical, laboratory, X-ray, hospital, ambulance and
dental expenses and fees, and reasonable costs and expenses
incurred in the purchase of artificial limbs and other approved
appliances which may be reasonably necessary for any member of the
division Department who has or shall become becomes temporarily,
permanently or totally disabled by injury, illness or disease
resulting from any occupational risk or hazard inherent in or
peculiar to the service required of members of the division
Department and incurred pursuant to or while such member was or
shall be engaged in the performance of duties as a member of the division Department. Whenever the Superintendent shall determine
determines that any disabled member is ineligible to receive any of
the aforesaid benefits at public expense, the Superintendent shall,
at the request of such the disabled member, refer such the matter
to the Consolidated Public Retirement Board for hearing and final
decision. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current
rate schedule in use by the Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term "salary"
does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the division
Department has, or shall in the opinion of the Retirement Board,
become permanently partially or totally disabled to the extent that
such the member cannot adequately perform the duties required of a
member of the division Department from any cause other than those
set forth in the preceding section and not due to vicious habits,
intemperance or willful misconduct on his or her part, such the
member shall be retired by the Retirement Board. Such The member
shall be is entitled to receive annually and there shall be paid to
such the member while in status of retirement, from the Death,
Disability and Retirement Fund in equal monthly installments during
the lifetime of such member or until such the disability shall sooner terminate terminates, a sum equal to one-half the salary
received in the preceding twelve-month period: Provided, That if
the member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit. If
such the member, at the time of such retirement under the terms of
this section, shall have has served twenty years or longer as a
member of the division, such Department, the member shall be is
entitled to receive annually and there shall be paid to such the
member from the Death, Disability and Retirement Fund in equal
monthly installments, commencing on the date such the member shall
be is retired and continuing during the lifetime of such the
member, until the member attains the age of fifty, while in status
of retirement, an amount equal to one-half the salary received by
the member in the preceding twelve-month period: Provided,
however, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit
provided for in subsection (c), section twenty-seven of this article as it would apply to his or her aggregate career earnings
from the division Department through the day immediately preceding
his or her disability. The recalculation of benefit upon a member
attaining age fifty shall be deemed considered to be a retirement
under the provisions of section twenty-seven of this article, for
purposes of determining the amount of annual annuity adjustment and
for all other purposes of this article.
§15-2-31. Same - Physical examinations; termination.
The Consolidated Public Retirement Board may require any
member who has been or who shall be retired with compensation on
account of disability to submit to a physical and/or mental
examination by a physician or physicians selected or approved by
the Board and cause all costs incident to such the examination
including hospital, laboratory, X ray, medical and physicians' fees
to be paid out of funds appropriated to defray the current expense
of the division Department, and a report of the findings of such
the physician or physicians shall be submitted in writing to the
Consolidated Public Retirement Board for its consideration. If,
from such the report or from such the report and hearing thereon on
the report, the Retirement Board shall be is of opinion and find
finds that such the disabled member shall have has recovered from
such the disability to the extent that he or she is able to perform
adequately the duties of a member of the division law-enforcement officer, the Board shall order such member to reassume active duty
as a member of the division and thereupon that all payments from
the Death, Disability and Retirement Fund shall be terminated. If,
from the report or the report and hearing thereon on the report,
the Board shall be is of the opinion and find finds that the
disabled member shall have has recovered from the his or her
previously determined probable permanent disability to the extent
that he or she is able to engage in any gainful employment but
remains unable to adequately perform the duties required as a
member of the division of a law-enforcement officer, the Board
shall order the payment, in monthly installments of an amount equal
to two thirds of the salary, in the case of a member retired under
the provisions of section twenty-nine of this article, or equal to
one half of the salary, in the case of a member retired under the
provisions of section thirty of this article, excluding any
compensation paid for overtime service, for the twelve-month
employment period preceding the disability: Provided, That if the
member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting with legal authority on the member's behalf. After receiving an
application for a disability benefit from a member or a person
acting with legal authority on behalf of the member, the Board
shall notify the Superintendent of the Department that an
application has been filed: Provided, That when, in the judgment
of the Superintendent, a member is no longer physically or mentally
fit for continued duty as a member of the West Virginia State
Police and the member has failed or refused to make application for
disability benefits under this article, the Superintendent may
petition the Board to retire the member on the basis of disability
pursuant to rules which may be established by the Board. Within
thirty days of the Superintendent's receipt of the notice from the
Board or the filing of the Superintendent's petition with the
Board, the Superintendent shall forward to the Board a statement
certifying the duties of the member's employment, information
relating to the Superintendent's position on the work relatedness
of the member's alleged disability, complete copies of the member's
medical file and any other information requested by the Board in
its processing of the application, if this information is requested
timely.
(b) The Board shall propose legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code relating to the processing of applications and petitions for disability retirement under this article.
(c) The Board shall notify a member and the Superintendent of
its final action on the disability application or petition within
ten days of the Board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the Superintendent is aggrieved by the decision of the Board and
intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the Board within
twenty days of the member's or Superintendent's receipt of the
Board's notice that they intend to pursue judicial review of the
Board's decision.
(d) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient file the
annual statement of earnings if the Board's physician certifies
that the recipient's disability is ongoing. The Board shall
annually examine the information submitted by the recipient. If a
disability retirant refuses to file a statement and information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2-31b. Annual report on each employer's disability retirement experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the Board shall prepare a
report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of State Police employees
who are members of the Fund. The report shall be submitted to the
Governor and the chairpersons of the standing committees of the
Senate and House of Delegates with primary responsibility for
retirement legislation.
§15-2-32. Retired member not to exercise police authority;
retention of group insurance
.
A member who has been or shall be is retired shall may not,
while in retirement status, exercise any of the powers conferred
upon active members by section twelve of this article; but shall be
is entitled to receive free of cost to such the member and retain
as his or her separate property one complete standard uniform
prescribed by section nine of this article: Provided, That such
the uniform may be worn by a member in retirement status only on
such occasions as shall be prescribed by the Superintendent. The Superintendent is authorized to shall maintain at public expense
for the benefit of all members in retirement status that group life
insurance mentioned in section ten of this article. The
Superintendent, when he shall be or she is of opinion that the
public safety shall require, may recall to active duty during such
any period as determined by the Superintendent shall determine, any
member who shall be is retired under the provisions of section
twenty-seven of this article, provided the consent of such the
member to reassume duties of active membership shall first be had
and obtained. When any member in retirement shall reassume resumes
status of active membership such the member, during the period such
the member shall remain remains in active status, shall is not be
entitled to receive retirement pay or benefits, but in lieu
thereof, shall be is entitled to receive that rate of salary and
allowance pertinent to the rank or grade held by such the member
when retired. When such the member shall be is released from
active duty he or she shall reassume the status of retirement and
shall thereupon be entitled to receive appropriate benefits as
provided by this article: Provided, That the amount of such the
benefits shall in no event be less than the amount determined by
the order of the Retirement Board previously made in his or her
behalf.
§15-2-33. Awards and benefits to dependents of member -- When member dies in performance of duty, etc.; dependent child
scholarship and amount.
(a) The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose loses his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while such the member
was or shall be is engaged in the performance of his or her duties
as a member of the division Department, or if said the member shall
die dies from any cause after having been retired pursuant to the
provisions of section twenty-nine of this article, the surviving
spouse or other dependent shall be is entitled to receive and shall
be paid from the Death, Disability and Retirement Fund benefits as
follows: To the surviving spouse annually, in equal monthly
installments during his or her lifetime one or the other of two
amounts, which shall become immediately available and which shall
be the greater of:
(1) An amount equal to seven tenths of the salary received in
the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the division Department for twelve months prior to the disability,
the amount of monthly salary shall be annualized for the purpose of
determining the benefit; or
(2) The sum of six thousand dollars.
(b) In addition thereto such the surviving spouse shall be is
entitled to receive and there shall be paid to such person the
surviving spouse one hundred dollars monthly for each dependent
child or children. If such the surviving spouse dies or if there
is no surviving spouse, there shall be paid monthly to each such
dependent child or children from the Death, Disability and
Retirement Fund a sum equal to twenty-five percent of the surviving
spouse's entitlement. If there are is no surviving spouse and no
dependent child or children, there shall be paid annually in equal
monthly installments from the Death, Disability and Retirement Fund
to the dependent parents of the deceased member during their joint
lifetimes a sum equal to the amount which a surviving spouse,
without children, would have received: Provided, That when there
is but one dependent parent surviving, that parent is entitled to
receive during his or her lifetime one-half the amount which both
parents, if living, would have been entitled to receive.
(c) Any person qualified as a surviving dependent child under
this section shall, in addition to any other benefits due under
this or other sections of this article, be is entitled to receive
a scholarship to be applied to the career development education of
that person. This sum up to but not exceeding seven thousand five
hundred dollars shall be paid from the Death, Disability and Retirement Fund to any university or college in this state or to
any trade or vocational school or other entity in this state
approved by the Board, to offset the expenses of tuition, room and
board, books, fees or other costs incurred in a course of study at
any of those institutions so long as the recipient makes
application to the Board on an approved form and under such rules
as provided by the Board may provide, and maintains scholastic
eligibility as defined by the institution or the Board. The Board
may by appropriate rules define age requirements, physical and
mental requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
(d) Awards and benefits for a member's surviving spouse or
dependents received under any section or any of the provisions of
this retirement system shall be in lieu of receipt of any such
benefits for such those persons under the provisions of any other
state retirement system. Receipt of benefits under any other state
retirement system shall be in lieu of any right to receive any
benefits under this retirement system, so that only a single
receipt of retirement benefits shall occur occurs.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected causes.
(a) In any case where a member while in active service of the
division Department, before having completed twenty years of
service as a member of the division has died or shall die
Department, dies from any cause other than those specified in this
article and not due to vicious habits, intemperance or willful
misconduct on his or her part, there shall be paid annually in
equal monthly installments from said the Death, Disability and
Retirement Fund to the surviving spouse of such the member during
his or her lifetime, or until such time as said the surviving
spouse remarries, a sum equal to one half of the salary received in
the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the division Department for twelve months prior to his or her
death, the amount of monthly salary shall be annualized for the
purpose of determining the benefit. Such The benefit shall become
immediately available upon the death of the member. If there is no
surviving spouse, or the surviving spouse dies or remarries, there
shall be paid monthly to each dependent child or children, from the
Death, Disability and Retirement Fund, a sum equal to twenty-five
percent of the surviving spouse's entitlement. If there are is no
surviving spouse and no dependent child or children, there shall be
paid annually in equal monthly installments from the Fund to the dependent parents of the deceased member during their joint
lifetimes, a sum equal to the amount which a surviving spouse would
have been entitled to receive: Provided, however, That when there
is but one dependent parent surviving, that parent shall be is
entitled to receive during his or her lifetime one-half the amount
which both parents, if living, would have been entitled to receive.
(b) For the purposes of this section, the term "salary" does
not include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who shall be is discharged by order of the
Superintendent or shall otherwise terminate terminates employment
with the division shall Department, at the written request of the
member to the Retirement Board, be is entitled to receive from the
Retirement Fund a sum equal to the aggregate of the principal
amount of moneys deducted from his or her salary and paid into the
Death, Disability and Retirement Fund plus four percent interest
compounded thereon calculated annually as provided and required by
this article.
(b) Any member who has ten or more years of service with the
division Department and who withdraws his or her contributions may
thereafter be reenlisted as a member of the division Department,
but may not receive any prior service credit on account of former service, unless following reenlistment the member shall redeposit
redeposits in the Fund established in article two-a of this chapter
the amount of the refund, together with interest thereon at the
rate of seven and one-half percent per annum from the date of
withdrawal to the date of redeposit, in which case he or she shall
receive the same credit on account of his or her former service as
if no refund had been made. He or she shall become a member of the
Retirement System established in article two-a of this chapter.
(c) Every member who completes ten years of service with the
division of public safety Department is eligible, upon separation
of employment with the division Department, either to withdraw his
or her contributions in accordance with subsection (a) of this
section or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
is eligible to receive a retirement annuity. Any member choosing
to receive the deferred annuity under this subsection is not
eligible to receive the annual annuity adjustment provided in
section twenty-seven-a of this article. When the Retirement Board
retires any member under any of the provisions of this section, the
Board shall, by order in writing, make an award directing that the
member is entitled to receive annually and that there shall be paid
to the member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of the member while
in status of retirement one or the other of two amounts, whichever
is greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring member may choose, in lieu of such a life
annuity, an annuity in reduced amount payable during the member's
lifetime, with one half of such the reduced monthly amount paid to
his or her surviving spouse if any, for the spouse's remaining
lifetime after the death of the member. Reduction of this monthly
benefit amount shall be calculated to be of equal actuarial value
to the life annuity the member could otherwise have chosen.
§15-2-39a. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in any of the West Virginia
state-sponsored pension systems as calculated in the annual
actuarial valuation for the plan during any fiscal year, the
additional unfunded actuarial accrued liability of the system shall
be fully amortized over no more than the five consecutive fiscal
years following the date the increase in benefits or new benefits
become effective as certified by the Consolidated Public Retirement
Board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount
of the amortization payment each year for the system as part of the
annual budget submission or in an executive message to the
Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for active members due to retirement, death or disability as provided
for in the system shall not be amended in such a manner as to
increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the
first day of July, two thousand twenty-five: Provided, That if
bonds are issued pursuant to article eight, chapter twelve of this
code, the provisions of this section shall not terminate while any
of the bonds are outstanding.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Active military duty" means full-time active duty with
the armed forces of the United States, namely, the United States
Air Force, Army, Coast Guard, Marines or Navy; and service with the
National Guard or reserve military forces of any of such the armed
forces when the member has been called to active full-time duty and
has received no compensation during the period of such duty from
any person other than the armed forces.
(2) "Base salary" means compensation paid to a member without
regard to any overtime pay.
(3) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(4) "Division" "Department" means the division of public
safety West Virginia State Police.
(5) "Final average salary" means the average of the highest
annual compensation received for employment with the division
Department, including compensation paid for overtime service,
received by the member during any five calendar years within the
member's last ten years of service.
(6) "Fund" means the West Virginia State Police Retirement
Fund created pursuant to section four of this article.
(7) "Member" or "employee" means a person regularly employed
in the service of the division of public safety after the effective
date of this article.
(8) "Salary" means the compensation of a member, excluding any
overtime payments.
(9)"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(10) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(11) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half; or (b) the
calendar year in which he or she retires or otherwise separates from service with the department.
(12)"Retirement system," or "system" means the West Virginia
state police retirement system created and established by this
article.
(7) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(8) "Law-enforcement officer" means individuals employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are purely administrative
in nature.
(9) "Member" or "employee" means a person regularly employed
in the service of the Department as a law-enforcement officer after
the effective date of this article.
(10) "Month of service" means each month for which a member is
paid or entitled to payment for at least one hour of service for
which contributions were remitted to the Fund. These months shall
be credited to the member for the calendar year in which the duties are performed.
(11) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a law
enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in
other types of nonlaw-enforcement employment.
(12) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(13) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(14) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one half years; or (b) the
calendar year in which he or she retires or otherwise separates
from service with the Department after having attained the age of
seventy and one half years.
(15) "Retirement system", "plan" or "system" means the West
Virginia State Police Retirement System created and established by this article.
(16) "Salary" means the compensation of a member, excluding
any overtime payments.
(17) "Totally disabled" means a member's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subdivision, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the Department, but also cannot, considering his or her
age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (A) The work exists in the immediate area in which the
member lives; (B) a specific job vacancy exists; or (C) the member
would be hired if he or she applied for work.
(18) "Years of service" means the months of service acquired
by a member while in active employment with the Department divided
by twelve. Years of service shall be calculated in years and
fraction of a year from the date of active employment of the member
with the Department through the date of termination of employment
or retirement from the Department. If a member returns to active employment with the Department following a previous termination of
employment with the Department, and the member has not received a
refund of contributions plus interest for the previous employment
under section eight of this article, service shall be calculated
separately for each period of continuous employment, and years of
service shall be the total service for all periods of employment.
Years of service shall exclude any periods of employment with the
Department for which a refund of contributions plus interest has
been paid to the member, unless the member repays the previous
withdrawal, as provided in section eight of this article, to
reinstate the years of service.
§15-2A-5. Members' contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member and paid into the Fund created pursuant to section four of
this article, twelve percent of the amount of his or her salary.
An additional twelve percent of the monthly salary of each member
of the Department shall be paid by the State of West Virginia
monthly into such Fund out of the annual appropriation for the
division.
(b) The State of West Virginia's contributions to the
retirement system, as determined by the Consolidated Public
Retirement Board by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this
code, shall be a percent of the members' total annual compensation
related to benefits under this retirement system. In determining
the amount, the Board shall give consideration to setting the
amount at a sum equal to an amount which, if paid annually by the
state, will be sufficient to provide for the total normal cost of
the benefits expected to become payable to all members and to
amortize any unfunded liability found by application of the
actuarial funding method chosen for that purpose by the
Consolidated Public Retirement Board, over a period of years
determined actuarially appropriate. When proposing a rule for
promulgation which relates to the amount of employer contribution,
the board may promulgate emergency rules pursuant to the provisions
of article three, chapter twenty-nine-a of this code, if the
inability of the Board to increase state contributions will
detrimentally affect the actuarial soundness of the retirement
system. A signed statement from the state actuary shall accompany
the statement of facts and circumstances constituting an emergency
which shall be filed in the State Register. For purposes of this
section, subdivision (2), subsection (b), section fifteen-a,
article three, chapter twenty-nine-a of this code is not applicable
to the Secretary of State's determination of whether an emergency
rule should be approved. The state's contributions shall be paid monthly into the fund created pursuant to section four of this
article out of the annual appropriation for the Department.
(b) (c) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits.
(a) A member may retire with full benefits upon attaining the
age of fifty-five and completing twenty or more years of service,
by lodging with the Consolidated Public Retirement Board his or her
voluntary petition in writing for retirement. A member who is less
than age fifty-five may retire upon completing twenty years or more
of service: Provided, That he or she will receive a reduced
benefit that is of equal actuarial value to the benefit the member
would have received if the member deferred commencement of his or
her accrued retirement benefit to the age of fifty-five.
(b) When the Retirement Board retires a member with full
benefits under the provisions of this section, the Board, by order
in writing, shall make a determination that the member is entitled
to receive an annuity equal to two and three-fourths percent of his
or her final average salary multiplied by the number of years, and
fraction of a year, of his or her service in the division
Department at the time of retirement. The member's annuity shall
begin the first day of the calendar month following the month in which the member's application for the annuity is filed with the
Board on or after his or her attaining age and service
requirements, and termination of employment.
(c) In no event may the provisions of section thirteen,
article sixteen, chapter five of this code be applied in
determining eligibility to retire with either a deferred or
immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.
(a) Every member of the division of public safety Department
who is sixty-three years of age or older and who is retired by the
Retirement Board under the provisions of section six of this
article; every member who is retired under the provisions of
section nine or ten of this article; and every surviving spouse
receiving a benefit pursuant to section twelve, thirteen or
fourteen of this article is eligible to receive an annual
retirement annuity adjustment equal to one percent of his or her
retirement award or surviving spouse award. Such The adjustments
may not be retroactive. Yearly adjustments shall begin upon the
first day of July of each year. The annuity adjustments shall be
awarded and paid to a member from the Fund in equal monthly
installments while the member is in status of retirement. The
annuity adjustments shall supplement the retirement awards and
benefits provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant
to the provisions of section nine, ten, twelve, thirteen or
fourteen of this article shall begin to receive the annual annuity
adjustment one year after the commencement of the benefit on the
next July first: Provided, That if the member has been retired for
less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata
share of the full year's annuity adjustment.
§15-2A-8. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who shall be is discharged by order of the
Superintendent or shall otherwise terminate terminates employment
with the division shall Department is, at the written request of
the member to the Retirement Board, be entitled to receive from the
Retirement Fund a sum equal to the aggregate of the principal
amount of moneys deducted from the salary of the member and paid
into the Retirement Fund plus four percent interest compounded
thereon calculated annually as provided and required by this
article.
(b) Any member withdrawing contributions who may thereafter be
reenlisted as a member of the division Department shall not receive
any prior service credit on account of the former service, unless
following his or her reenlistment the member shall redeposit redeposits in the Fund the amount of the refund, together with
interest thereon at the rate of seven and one-half percent per
annum from the date of withdrawal to the date of redeposit, in
which case he or she shall receive the same credit on account of
his or her former service as if no refund had been made.
(c) Every member who completes ten years of service with the
division of public safety Department is eligible, upon separation
of employment with the division Department, to either withdraw his
or her contributions in accordance with subsection (a) of this
section, or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
is eligible to receive a retirement annuity. The annuity shall be
payable during the lifetime of the member, and shall be in the
amount of his or her accrued retirement benefit as determined under
section six of this article. The retiring member may choose, in
lieu of such a life annuity, an annuity in reduced amount payable
during the member's lifetime, with one half of the reduced monthly
amount paid to his or her surviving spouse if any, for the spouse's
remaining lifetime after the death of the member. Reduction of
such the monthly benefit amount shall be calculated to be of equal
actuarial value to the life annuity the member could otherwise have
chosen. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity
adjustment provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Any Except as otherwise provided in this section, a member
of the division Department who has been or shall become physically
or mentally permanently not yet entered retirement status on the
basis of age and service and who becomes partially disabled by
injury, illness or disease resulting from any occupational risk or
hazard inherent in or peculiar to the services required of members
of the division Department and incurred pursuant to or while the
member was or shall be engaged in the performance of his or her
duties as a member of the division Department shall, if, in the
opinion of the Retirement Board, he or she is, by reason of such
cause, unable to perform adequately the duties required of him or
her as a member of the division Department, but is able to engage
in other gainful employment in a field other than law enforcement,
be retired from active service by the Board. The member shall
thereafter be is entitled to receive annually and there shall be
paid to the member from the Fund in equal monthly installments
during the lifetime of the member, or until the member attains the
age of fifty-five or until such the disability shall sooner
terminate terminates, one or the other of two amounts, whichever is greater:
(1) An amount equal to six tenths of the base salary received
in the preceding twelve-month employment period: Provided, That if
the member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the
benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division Department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed considered to be a
retirement under the provisions of section six of this article, for
purposes of determining the amount of annual annuity adjustment and
for all other purposes of this article: Provided, That a member
who is partially disabled under this article may not, while in
receipt of benefits for partial disability, be employed as a law-
enforcement officer: Provided, however, That a member retired on
a partial disability under this article may serve as an elected
sheriff or appointed chief of police in the state without a loss of
disability retirement benefits so long as the elected or appointed
position is shown, to the satisfaction of the Board, to require the performance of administrative duties and functions only, as opposed
to the full range of duties of a law-enforcement officer.
(b) If any Any member shall become permanently who has not yet
entered retirement status on the basis of age and service and who
becomes physically or mentally disabled by injury, illness or
disease on a probable permanent basis resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members of the division Department and incurred
pursuant to or while such the member was or shall be is engaged in
the performance of his or her duties as a member of the division
Department to the extent that the member is or shall be
incapacitated ever to engage in any gainful employment, the member
shall be is entitled to receive annually, and there shall be paid
to such the member from the Fund in equal monthly installments
during the lifetime of the member or until such the disability
shall sooner terminate terminates, an amount equal to the amount of
the base salary received by the member in the preceding twelve-
month employment period.
(c) The Superintendent of the division is authorized to
Department may expend moneys from funds appropriated for the
division Department in payment of medical, surgical, laboratory, X-
ray, hospital, ambulance and dental expenses and fees, and
reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be
reasonably necessary for any member of the division Department who
has or shall become is temporarily, permanently or totally disabled
by injury, illness or disease resulting from any occupational risk
or hazard inherent in or peculiar to the service required of
members of the division Department and incurred pursuant to or
while the member was or shall be engaged in the performance of
duties as a member of the division Department. Whenever the
Superintendent shall determine determines that any disabled member
is ineligible to receive any of the aforesaid benefits at public
expense, the Superintendent shall, at the request of the disabled
member, refer such the matter to the Board for hearing and final
decision. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current
rate schedule in use by the Bureau of Employment Programs, Workers'
Compensation Division.
§15-2A-10. Same -- Due to other causes.
(a) If any member while in active service of the division has
or shall, in the opinion of the board, become permanently State
Police becomes partially or totally disabled on a probable
permanent basis to the extent that the member he or she cannot
adequately perform the duties required of a member of the division
Department from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or
willful misconduct on his or her part, the member shall be retired
by the Board. There shall be paid annually to the member from the
Fund in equal monthly installments, commencing on the date the
member shall be is retired and continuing during the lifetime of
the member; or until the member attains the age of fifty-five;
while in status of retirement an amount equal to one half the base
salary received by the member in the preceding twelve-month period:
Provided, That if the member had not been employed with the
division Department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of
determining the benefit.
(b) Upon attaining age fifty-five, the member shall receive
the benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division Department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed considered to be a
retirement under the provisions of section six of this article, for
purposes of determining the amount of annual annuity adjustment and
for all other purposes of this article.
§15-2A-11. Same -- Physical examinations; termination.
The Board may require any member who has been or who shall be retired with compensation on account of disability to submit to a
physical and/or or mental examination or both a physical and mental
examination by a physician or physicians selected or approved by
the retirement Board and cause all costs incident to such the
examination including hospital, laboratory, X-ray, medical and
physicians' fees to be paid out of funds appropriated to defray the
current expenses of the division Department, and a report of the
findings of such the physician or physicians shall be submitted in
writing to the Board for its consideration. If from the report or
from the report and hearing thereon on the report, the Board shall
be is of opinion and find finds that the disabled member shall have
has recovered from such the disability to the extent that he or she
is able to perform adequately the duties of a member of the
division law-enforcement officer, the Board shall order the member
to reassume active duty as a member of the division and thereupon
that all payments from the Fund shall be terminated. If from the
report or the report and hearing thereon on the report, the Board
shall be is of the opinion and find that the disabled member has
recovered from the his or her previously determined probable
permanent disability to the extent that he or she is able to engage
in any gainful employment but unable to adequately perform the
duties required as a member of the division of a law-enforcement
officer, the Board shall order, in the case of a member retired under the provisions of section nine of this article, that the
disabled member be paid annually from the Fund an amount equal to
six tenths of the base salary paid to the member in the last
twelve-month employment period. The Board shall order, in the case
of a member retired under the provisions of section ten of this
article, that the disabled member be paid from the Fund an amount
equal to one fourth of the base salary paid to the member in the
last twelve-month employment period: Provided, That if the member
had not been employed with the division Department for twelve
months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit.
§15-2A-11a. Physical examinations of prospective members;
application for disability benefit; determinations.
(a) Not later than thirty days after an employee becomes a
member of the Fund, the employer shall forward to the Board a copy
of the physician's report of a physical examination which
incorporates the standards or procedures described in section
seven, article two of this chapter. A copy of the physicians's
report shall be placed in the employee's retirement system file
maintained by the Board.
(b) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member's behalf. After receiving an application for a disability benefit, the Board shall notify the
Superintendent of the Department that an application has been
filed: Provided, That when, in the judgment of the Superintendent,
a member is no longer physically or mentally fit for continued duty
as a member of the West Virginia State Police and the member has
failed or refused to make application for disability benefits under
this article, the Superintendent may petition the Board to retire
the member on the basis of disability pursuant to legislative rules
proposed in accordance with article three, chapter twenty-nine-a of
this code. Within thirty days of the Superintendent's receipt of
the notice from the Board or the filing of the Superintendent's
petition with the Board, the Superintendent shall forward to the
Board a statement certifying the duties of the member's employment,
information relating to the Superintendent's position on the work
relatedness of the member's alleged disability, complete copies of
the member's medical file and any other information requested by
the Board in its processing of the application.
(c) The Board shall propose legislative rules in accordance
with article three, chapter twenty-nine-a of this code relating to
the processing of applications and petitions for disability
retirement under this article.
(d) The Board shall notify a member and the Superintendent of
its final action on the disability application or petition within ten days of the Board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the Superintendent is aggrieved by the decision of the Board and
intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party aggrieved shall notify the Board within twenty
days of the member's or Superintendent's receipt of the Board's
notice that they intend to pursue judicial review of the Board's
decision.
(e) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient file the
annual statement of earnings if the Board's physician certifies
that the recipient's disability is ongoing. The Board shall
annually examine the information submitted by the recipient. If a
disability recipient refuses to file the statement or information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2A-11b. Annual report on each employer's disability retirement
experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the Board shall prepare a report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of the State Police
employees who are members of the Fund. The report shall be
submitted to the Governor and the chairpersons of the standing
committees of the Senate and House of Delegates with primary
responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent child
scholarship and amount.
The surviving spouse, the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while the member was or
shall be engaged in the performance of his or her duties as a
member of the division Department, or the survivor of a member who
dies from any cause after having been retired pursuant to the
provisions of section nine of this article, shall be is entitled to
receive and shall be paid from the Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during
his or her lifetime, one or the other of two amounts, which shall
become immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the base salary
received in the preceding twelve-month employment period by the
deceased member: Provided, That if the member had not been
employed with the division Department for twelve months prior to
his or her death, the amount of monthly salary shall be annualized
for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse shall be is entitled
to receive and there shall be paid to such the person one hundred
dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there
shall be paid monthly to each dependent child or children from the
Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount which
a surviving spouse, without children, would have received:
Provided, That when there is but one dependent parent surviving,
that parent is entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been
entitled to receive.
Any person qualifying as a surviving dependent child under
this section shall, in addition to any other benefits due under
this or other sections of this article, be is entitled to receive
a scholarship to be applied to the career development education of
that person. This sum, up to but not exceeding seven thousand five
hundred dollars, shall be paid from the Fund to any university or
college in this state or to any trade or vocational school or other
entity in this state approved by the Board, to offset the expenses
of tuition, room and board, books, fees or other costs incurred in
a course of study at any of these institutions so long as the
recipient makes application to the Board on an approved form and
under such rules as provided by the Board may provide, and
maintains scholastic eligibility as defined by the institution or
the Board. The Board may by appropriate rules define age
requirements, physical and mental requirements, scholastic
eligibility, disbursement methods, institutional qualifications and
other requirements as necessary and not inconsistent with this
section.
Awards and benefits for a surviving spouse or dependents of a
member received under any section or any of the provisions of this
retirement system shall be are in lieu of receipt of any benefits for these persons under the provisions of any other state
retirement system. Receipt of benefits under any other state
retirement system shall be is in lieu of any right to receive any
benefits under this retirement system, so that only a single
receipt of state retirement benefits shall occur occurs.
§15-2A-13. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division Department, before having completed twenty years of
service as a member of the division has died or shall die
Department, dies from any cause other than those specified in this
article and not due to vicious habits, intemperance or willful
misconduct on his or her part, there shall be paid annually in
equal monthly installments from the Fund to the surviving spouse of
the member during his or her lifetime, or until such time as the
surviving spouse remarries, a sum equal to one half of the base
salary received in the preceding twelve-month employment period by
the deceased member: Provided, That if the member had not been
employed with the division Department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit. If there is no
surviving spouse or the surviving spouse dies or remarries, there
shall be paid monthly to each dependent child or children from the Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount that
a surviving spouse would have been entitled to receive: Provided,
however, That when there is but one dependent parent surviving,
then that parent shall be is entitled to receive during his or her
lifetime one half the amount which both parents, if living, would
have been entitled to receive.
§15-2A-14. Awards and benefits to dependents of member -- When
member dies after retirement or after serving twenty years.
(a) When any member of the division Department has completed
twenty years of service or longer as a member of the division
Department and has died or shall die dies from any cause or causes
other than those specified in this article before having been
retired by the Board, and when a member in retirement status has
died or shall die after having been retired by the Board under the
provisions of this article, there shall be paid annually in equal
monthly installments from the Fund to the surviving spouse of the
member, commencing on the date of the death of the member and
continuing during the lifetime or until remarriage of the surviving
spouse, an amount equal to two thirds of the retirement benefit which the deceased member was receiving while in status of
retirement, or would have been entitled to receive to the same
effect as if the member had been retired under the provisions of
this article immediately prior to the time of his or her death. In
no event shall the annual benefit payable be less than five
thousand dollars. In addition thereto, the surviving spouse is
entitled to receive and there shall be paid to the surviving spouse
from the Fund the sum of one hundred dollars monthly for each
dependent child or children. If the surviving spouse dies or
remarries, or if there is no surviving spouse, there shall be paid
monthly from the Fund to each dependent child or children of the
deceased member a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse or no surviving
spouse eligible to receive benefits and no dependent child or
children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount which
a surviving spouse without children would have been entitled to
receive: Provided, That when there is but one dependent parent
surviving, that parent shall be is entitled to receive during his
or her lifetime one half the amount which both parents, if living,
would have been entitled to receive.
(b) The member may choose a higher percentage of surviving spouse benefits by taking an actuarially determined reduced initial
benefit so that the chosen spouse benefit and initial benefit would
be actuarially equivalent to the normal spouse benefit and initial
benefit. The Retirement Board shall design these benefit options
and provide them as choices for the member to select. For the
purposes of this subsection, "initial benefit" means the benefit
received by the member upon retirement.
§15-2A-19. Credit toward retirement for member's prior military
service; credit toward retirement when member has joined armed
forces in time of armed conflict; qualified military service.
(a) Any member who has previously served on active military
duty is entitled to receive additional credited service for the
purpose of determining the amount of retirement award under the
provisions of this article for a period equal to the active
military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under this article, he or she has actually served with the division Department for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who while a member of the division
Department was commissioned, enlisted or inducted into the armed
forces of the United States or, being a member of the reserve
officers' corps, was called to active duty in the armed forces
between the first day of September, one thousand nine hundred
forty, and the close of hostilities in World War II, or between the
twenty-seventh day of June, one thousand nine hundred fifty, and
the close of the armed conflict in Korea on the twenty-seventh day
of July, one thousand nine hundred fifty-three, between the first
day of August, one thousand nine hundred sixty-four, and the close
of the armed conflict in Vietnam, or during any other period of
armed conflict by the United States whether sanctioned by a
declaration of war by Congress or by executive or other order of
the President, is entitled to and shall receive credit on the
minimum period of service required by law for retirement pay from
the service of the division of public safety Department, or its
predecessor agency, for a period equal to the full time that he or
she has or, pursuant to that commission, enlistment, induction or
call, shall have served with the armed forces subject to the
following:
(1) That he or she has been honorably discharged from the armed forces;
(2) That within ninety days after honorable discharge from the
armed forces, he or she presented himself or herself to the
Superintendent and offered to resume service as an active member of
the division Department; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(c) The total amount of military service credit allowable
under this section may not exceed five years for any member of the
division Department.
(d) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414 (u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414 (u) of the Internal Revenue Code. The Retirement Board
is authorized to shall determine all questions and make all
decisions relating to this section and, pursuant to the authority
granted to the Retirement Board in section one, article ten-d, chapter five of this code, may promulgate rules relating to
contributions, benefits and service credit to comply with Section
414 (u) of the Internal Revenue Code.
§15-2A-21. Retirement credited service through member's use, as
option, of accrued annual or sick leave days.
Any member accruing annual leave or sick leave days may, after
the effective date of this section, elect to use the days at the
time of retirement to acquire additional credited service in this
retirement system. The days shall be applied on the basis of two
workdays' credit granted for each one day of accrued annual or sick
leave days, with each month of retirement service credit to equal
twenty workdays and with any remainder of ten workdays or more to
constitute a full month of additional credit and any remainder of
less than ten workdays to be dropped and not used, notwithstanding
any provisions of the code to the contrary. The credited service
shall be allowed and not considered to controvert the requirement
of no more than twelve months' credited service in any year's
period.
§15-2A-22. Limitations on benefit increases.
(a) The state will not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in the system as calculated in
the annual actuarial valuation for the plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system will be fully amortized over no more than the five
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the five-year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
(c) The state will not increase any existing benefits or create any new benefits for active members due to retirement, death
or disability of the system unless the actuarial accrued liability
of the plan shall be at least eighty-five percent funded as of the
last day of the prior fiscal year as determined in the actuarial
valuation for the plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year
as of the date the improvement is adopted by the Legislature. Any
additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized
over not more than ten years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the ten-year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
"Teacher member" means the following persons, if regularly
employed for full-time service: (a) Any person employed for
instructional service in the public schools of West Virginia; (b)
principals; (c) public school librarians; (d) superintendents of
schools and assistant county superintendents of schools; (e) any county school attendance director holding a West Virginia teacher's
certificate; (f) the executive secretary of the retirement board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the state superintendent of
schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the state
superintendent performing services of an educational nature; (i)
employees of the state board of education who are performing
services of an educational nature; (j) any person employed in a
nonteaching capacity by the state board of education, the West
Virginia board of regents [abolished], any county board of
education, the state department of education or the teachers
retirement board, if that person was formerly employed as a teacher
in the public schools; (k) all classroom teachers, principals and
educational administrators in schools under the supervision of the
division of corrections, the division of health or the division of
human services; and (l) employees of the state bod of school
finance, if that person was formerly employed as a teacher in the
public schools.
"Nonteaching member" means any person, except a teacher
member, who is regularly employed for full-time service by: (a) Any
county board of education; (b) the state board of education; (c)
the West Virginia board of regents [abolished]; or (d) the teachers retirement board.
"Members of the administrative staff of the public schools"
means deans of instruction, deans of men, deans of women, and
financial and administrative secretaries.
"Members of the extension staff of the public schools" means
every agricultural agent, boys' and girls' club agent and every
member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
"Retirement system" means the state teachers retirement system
provided for in this article.
"Present teacher" means any person who was a teacher within
the thirty-five years beginning the first day of July, one thousand
nine hundred thirty-four, and whose membership in the retirement
system is currently active.
"New entrant" means a teacher who is not a present teacher.
"Regularly employed for full-time service" means employment in
a regular position or job throughout the employment term regardless
of the number of hours worked or the method of pay.
"Employment term" means employment for at least ten months, a
month being defined as twenty employment days.
"Present member" means a present teacher who is a member of
the retirement system.
"Total service" means all service as a teacher while a member of the retirement system since last becoming a member and, in
addition thereto, credit for prior service, if any.
"Prior service" means all service as a teacher completed prior
to the first day of July, one thousand nine hundred forty-one, and
all service of a present member who was employed as a teacher, and
did not contribute to a retirement account because he or she was
legally ineligible for membership during the service.
"Pick-up service" means service that a member was entitled to,
but which the employer has not withheld or paid for.
"Average final salary" means the average of the five highest
fiscal year salaries earned as a member within the last fifteen
fiscal years of total service credit, including military service as
provided in this article, or if total service is less than fifteen
years, the average annual salary for the period on which
contributions were made.
"Accumulated contributions" means all deposits and all
deductions from the earnable compensation of a contributor minus
the total of all supplemental fees deducted from his or her
compensation.
"Regular interest" means interest at four percent compounded
annually, or a higher earnable rate if set forth in the formula
established in legislative rules, series seven of the Consolidated
Public Retirement Board.
"Refund interest" means interest compounded, according to the
formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
"Employer" means the agency of and within the state which has
employed or employs a member.
"Contributor" means a member of the retirement system who has
an account in the teachers accumulation fund.
"Beneficiary" means the recipient of annuity payments made
under the retirement system.
"Refund beneficiary" means the estate of a deceased
contributor or a person he or she has nominated as beneficiary of
his or her contributions by written designation duly executed and
filed with the retirement board.
"Earnable compensation" means the full compensation actually
received by members for service as teachers whether or not a part
of the compensation is received from other funds, federal or
otherwise, than those provided by the state or its subdivisions.
Allowances from employers for maintenance of members shall be
considered a part of earnable compensation for those members whose
allowances were approved by the teachers retirement board and
contributions to the teachers retirement system were made, in
accordance therewith, on or before the first day of July, one
thousand nine hundred eighty.
"Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
"Member" means a member of the retirement system.
"Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state.
"Deposit" means a voluntary payment to his or her account by
a member.
"Plan year" means the twelve-month period commencing on the
first day of July and ending the following thirtieth day of June of
any designated year.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as it has been amended.
"Required beginning date" means the first day of April of the
calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half; or (b) the
calendar year in which the member retires or ceases covered
employment under the system.
(a) As used in this article, unless the context clearly
require a different meaning:
(1) "Accumulated contributions" means all deposits and all
deductions from the gross salary of a contributor plus regular
interest.
(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) "Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
(4) "Average final salary" means the average of the five
highest fiscal year salaries earned as a member within the last
fifteen fiscal years of total service credit, including military
service as provided in this article, or if total service is less
than fifteen years, the average annual salary for the period on
which contributions were made.
(5) "Beneficiary" means the recipient of annuity payments made
under the retirement system.
(6) "Contributor" means a member of the retirement system who
has an account in the teachers accumulation fund.
(7) "Deposit" means a voluntary payment to his or her account
by a member.
(8) "Employer" means the agency of and within the state which
has employed or employs a member.
(9) "Employment term" means employment for at least ten
months, a month being defined as twenty employment days.
(10) "Gross salary" means the fixed annual or periodic cash
wages paid by a participating public employer to a member for
performing duties for the participating public employer for which
the member was hired. Gross salary shall also include retroactive payments made to a member to correct a clerical error, or pursuant
to a court order or final order of an administrative agency charged
with enforcing federal or state law pertaining to the member's
rights to employment or wages, with all such retroactive salary
payments to be allocated to and deemed paid in the periods in which
the work was or would have been done. Gross salary shall not
include lump sum payments for bonuses, early retirement incentives,
severance pay, or any other fringe benefit of any kind including,
but not limited to, transportation allowances, automobiles or
automobile allowances, or lump sum payments for unused, accrued
leave of any type or character.
(11) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
(12) "Member" means a member of the retirement system.
(13) "Members of the administrative staff of the public
schools" means deans of instruction, deans of men, deans of women,
and financial and administrative secretaries.
(14) "Members of the extension staff of the public schools"
means every agricultural agent, boys' and girls' club agent and
every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
(15) "New entrant" means a teacher who is not a present
teacher.
(16) "Nonteaching member" means any person, except a teacher
member, who is regularly employed for full-time service by: (a)
Any county board of education; (b) the State Board of Education;
(c) the West Virginia Board of Regents [abolished]; or (d) the
Teachers Retirement Board.
(17) "Pick-up service" means service that a member was
entitled to, but which the employer has not withheld or paid for.
(18) "Plan year" means the twelve-month period commencing on
the first day of July and ending the following thirtieth day of
June of any designated year.
(19) "Present member" means a present teacher who is a member
of the retirement system.
(20) "Present teacher" means any person who was a teacher
within the thirty-five years beginning the first day of July, one
thousand nine hundred thirty-four, and whose membership in the
retirement system is currently active.
(21) "Prior service" means all service as a teacher completed
prior to the first day of July, one thousand nine hundred forty-
one, and all service of a present member who was employed as a
teacher, and did not contribute to a retirement account because he
or she was legally ineligible for membership during the service.
(22) "Public schools" means all publicly supported schools,
including colleges and universities in this state.
(23) "Refund beneficiary" means the estate of a deceased
contributor or a person he or she has nominated as beneficiary of
his or her contributions by written designation duly executed and
filed with the retirement board.
(24) "Refund interest" means interest compounded, according to
the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(25) "Regular interest" means interest at four percent
compounded annually, or a higher earnable rate if set forth in the
formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(26) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay.
(27) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half years; or (b) the
calendar year in which the member retires or ceases covered
employment under the system after having attained the age of
seventy and one half years.
(28) "Retirement system" means the State Teachers Retirement
System provided for in this article.
(29) "Teacher member" means the following persons, if regularly employed for full-time service: (a) Any person employed
for instructional service in the public schools of West Virginia;
(b) principals; (c) public school librarians; (d) superintendents
of schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher's
certificate; (f) the Executive Secretary of the Retirement Board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the State Superintendent of
Schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the State
Superintendent performing services of an educational nature; (i)
employees of the State Board of Education who are performing
services of an educational nature; (j) any person employed in a
nonteaching capacity by the State Board of Education, any county
board of education, the State Department of Education or the
Teachers Retirement Board, if that person was formerly employed as
a teacher in the public schools; (k) all classroom teachers,
principals and educational administrators in schools under the
supervision of the Division of Corrections, the Division of Health
or the Division of Human Services; and (l) employees of the State
Board of School Finance, if that person was formerly employed as a
teacher in the public schools.
(30) "Total service" means all service as a teacher while a member of the retirement system since last becoming a member and,
in addition thereto, credit for prior service, if any.
The masculine gender shall be construed so as to include the
feminine.
Age in excess of seventy years shall be considered to be
seventy years.
§18-7A-14. Contributions by members; contributions by employers.
(a) At the end of each month every member of the retirement
system shall contribute six percent of that member's monthly
earnable compensation gross salary to the Retirement Board:
Provided, That any member employed by the West Virginia Board of
Directors of the State College System or the Board of Trustees of
the University System at an institution of higher education under
its control shall contribute on the member's full earnable
compensation, unless otherwise provided in section fourteen-a of
this article.
(b) Annually, the contributions of each member shall be
credited to the member's account in the Teachers Accumulation
Retirement System Fund. The contributions shall be deducted from
the salaries of the members as herein prescribed in this section,
and every member shall be deemed considered to have given consent
to such the deductions. No deductions, however, shall be made from
the earnable compensation of any member who retired because of age or service, and then resumed service unless as provided in section
thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable
under this article, shall equal annually the total deductions from
the earnable compensation gross salary of members required by this
section. Beginning the first day of July, one thousand nine
hundred ninety-four, the rate shall be seven and one-half percent;
beginning on the first day of July, one thousand nine hundred
ninety-five, the rate shall be nine percent; beginning on the first
day of July, one thousand nine hundred ninety-six, the rate shall
be ten and one-half percent; beginning on the first day of July,
one thousand nine hundred ninety-seven, the rate shall be twelve
percent; beginning on the first day of July, one thousand nine
hundred ninety-eight, the rate shall be thirteen and one-half
percent; and beginning on the first day of July, one thousand nine
hundred ninety-nine and thereafter, the rate shall be fifteen
percent: Provided, That the rate shall be seven and one-half
percent for any individual who becomes a member of the Teachers
Retirement System for the first time on or after the first day of
July, two thousand five, or any individual who becomes a member of
the Teachers Retirement System as a result of the merger
contemplated in article seven-c of this chapter.
(d) Payment by an employer to a member of the sum specified in the employment contract minus the amount of the employee's
deductions shall be deemed considered to be a full discharge of the
employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the Retirement Board or
with the employer to be forwarded to the Retirement Board an
enrollment form showing the contributor's date of birth and other
data needed by the Retirement Board.
§18-7A-17. Statement and computation of teachers' service;
qualified military service.
(a) Under rules adopted by the Retirement Board, each teacher
shall file a detailed statement of his or her length of service as
a teacher for which he or she claims credit. The Retirement Board
shall determine what part of a year is the equivalent of a year of
service. In computing the service, however, it shall credit no
period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of
service performed in any calendar year.
(b) For the purpose of this article, the Retirement Board
shall grant prior service credit to new entrants and other members
of the retirement system for service in any of the armed forces of
the United States in any period of national emergency within which
a federal Selective Service Act was in effect. For purposes of
this section, "armed forces" includes Women's Army Corps, women's appointed volunteers for emergency service, Army Nurse Corps,
SPARS, Women's Reserve and other similar units officially parts of
the military service of the United States. The military service is
considered equivalent to public school teaching, and the salary
equivalent for each year of that service is the actual salary of
the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military
service shall not exceed ten years for any one member, nor shall it
exceed twenty-five percent of total service at the time of
retirement. Notwithstanding the preceding provisions of this
subsection, contributions, benefits and service credit with respect
to qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The Retirement Board
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the Retirement Board in section one, article ten-d, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with Section 414(u) of the Internal
Revenue Code. No military service credit may be used in more than
one retirement system administered by the Consolidated Public
Retirement Board.
(c) For service as a teacher in the employment of the federal
government, or a state or territory of the United States, or a
governmental subdivision of that state or territory, the Retirement
Board shall grant credit to the member: Provided, That the member
shall pay to the system double the amount he or she contributed
during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be
determined by the Retirement Board. The interest shall be
deposited in the reserve fund and service credit granted at the
time of retirement shall not exceed the lesser of ten years or
fifty percent of the member's total service as a teacher in West
Virginia. Any transfer of out-of-state service, as provided in
this article, shall not be used to establish eligibility for a
retirement allowance and the Retirement Board shall grant credit
for the transferred service as additional service only: Provided,
however, That a transfer of out-of-state service is prohibited if
the service is used to obtain a retirement benefit from another
retirement system: Provided further, That salaries paid to members
for service prior to entrance into the retirement system shall not
be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be
denied on the basis of minimum income rules promulgated by the teachers retirement board: Provided, That the member or retired
member shall pay to the system the amount he or she would have
contributed during the year or years of public school service for
which credit was denied as a result of the minimum income rules of
the Teachers Retirement Board.
(e) No members shall be considered absent from service while
serving as a member or employee of the Legislature of the state of
West Virginia during any duly constituted session of that body or
while serving as an elected member of a county commission during
any duly constituted session of that body.
(f) No member shall be considered absent from service as a
teacher while serving as an officer with a statewide professional
teaching association, or who has served in that capacity, and no
retired teacher, who served in that capacity while a member, shall
be considered to have been absent from service as a teacher by
reason of that service: Provided, That the period of service
credit granted for that service shall not exceed ten years:
Provided, however, That a member or retired teacher who is serving
or has served as an officer of a statewide professional teaching
association shall make deposits to the Teachers Retirement Board,
for the time of any absence, in an amount double the amount which
he or she would have contributed in his or her regular assignment
for a like period of time.
(g) The Teachers Retirement Board shall grant service credit
to any former or present member of the West Virginia Public
Employees Retirement System who has been a contributing member for
more than three years, for service previously credited by the
Public Employees Retirement System and: (1) Shall require the
transfer of the member's contributions to the Teachers Retirement
System; or (2) shall require a repayment of the amount withdrawn
any time prior to the member's retirement: Provided, That there
shall be added by the member to the amounts transferred or repaid
under this subsection an amount which shall be sufficient to equal
the contributions he or she would have made had the member been
under the Teachers Retirement System during the period of his or
her membership in the Public Employees Retirement System plus
interest at a rate to be determined by the Board compounded
annually from the date of withdrawal to the date of payment. The
interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary
parochial school, located within this state and fully accredited by
the West Virginia Department of Education, the Retirement Board
shall grant credit to the member: Provided, That the member shall
pay to the system double the amount contributed during the first
full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined by the Retirement Board. The interest shall be deposited in the
reserve fund and service granted at the time of retirement shall
not exceed the lesser of ten years or fifty percent of the member's
total service as a teacher in the West Virginia public school
system. Any transfer of parochial school service, as provided in
this section, may not be used to establish eligibility for a
retirement allowance and the Board shall grant credit for the
transfer as additional service only: Provided, however, That a
transfer of parochial school service is prohibited if the service
is used to obtain a retirement benefit from another retirement
system.
(i) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service
credit for time served in that capacity: Provided, That in order
to receive service credit under the provisions of this subsection
the following conditions must be met: (1) The member must have
moved from temporary employment with the participating employer to
permanent full-time employment with the participating employer
within one hundred twenty days following the termination of the
member's CETA employment; (2) the Board must receive evidence that
establishes to a reasonable degree of certainty as determined by
the Board that the member previously worked in CETA; and (3) the
member shall pay to the Board an amount equal to the employer and employee contribution plus interest at the amount set by the Board
for the amount of service credit sought pursuant to this
subsection: Provided, however, That the maximum service credit
that may be obtained under the provisions of this subsection is two
years: Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of March, two
thousand three: And provided further, That the Board shall
exercise due diligence to notify affected employees of the
provisions of this subsection.
(j) If a member is not eligible for prior service credit or
pension as provided in this article, then his or her prior service
shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or
her former membership rights as specified in section thirteen of
this article only in case he or she has served two years since his
or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l),
inclusive, of this section, the Board shall verify as soon as
practicable the statements of service submitted. The Retirement
Board shall issue prior service certificates to all persons
eligible for the certificates under the provisions of this article.
The certificates shall state the length of the prior service credit, but in no case shall the prior service credit exceed forty
years.
(m) Notwithstanding any provision of this article to the
contrary, when a member is or has been elected to serve as a member
of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her
teaching or administrative duties, the time served in discharge of
his or her duties of the legislative office are credited as time
served for purposes of computing service credit: Provided, That
the Board may not require any additional contributions from that
member in order for the Board to credit him or her with the
contributing service credit earned while discharging official
legislative duties: Provided, however, That nothing herein in this
section may be construed to relieve the employer from making the
employer contribution at the member's regular salary rate or rate
of pay from that employer on the contributing service credit earned
while the member is discharging his or her official legislative
duties. These employer payments shall commence as of the first day
of June, two thousand: Provided further, That any member to which
the provisions of this subsection apply may elect to pay to the
Board an amount equal to what his or her contribution would have
been for those periods of time he or she was serving in the
Legislature. The periods of time upon which the member paid his or her contribution shall then be included for purposes of determining
his or her final average salary as well as for determining years of
service: And provided further, That a member utilizing using the
provisions of this subsection is not required to pay interest on
any contributions he or she may decide to make.
(n) The Teachers Retirement Board shall grant service credit
to any former member of the State Police Death, Disability and
Retirement System who has been a contributing member for more than
three years, for service previously credited by the State Police
Death, Disability and Retirement System; and: (1) Shall require
the transfer of the member's contributions to the Teachers
Retirement System; or (2) shall require a repayment of the amount
withdrawn any time prior to the member's retirement: Provided,
That the member shall add to the amounts transferred or repaid
under this paragraph an amount which is sufficient to equal the
contributions he or she would have made had the member been under
the Teachers Retirement System during the period of his or her
membership in the State Police Death, Disability and Retirement
System plus interest at a rate of six percent to be determined by
the Board compounded annually from the date of withdrawal to the
date of payment. The interest paid shall be deposited in the
reserve fund.
§18-7A-18. Teachers Employers Contribution Collection Account; Teachers Retirement System Fund; transfers.
The funds created are the teachers accumulation fund, the
employers accumulation fund, the benefit fund, the reserve fund and
the expense fund. Each fund shall constitute a separate trust.
(a) The teachers accumulation fund shall be the fund in which
the contributions of members shall be accumulated. The accumulated
contributions of a member returned to the member upon that member's
withdrawal, or paid to that member's estate or designated
beneficiary in the event of death, shall be paid from the teachers
accumulation fund. Any accumulated contributions forfeited by
failure to claim such contributions shall be transferred from the
teachers accumulation fund to the reserve fund.
(a) There is hereby created in the State Treasury a special
revenue account designated the "Teachers Employers Contribution
Collection Account" to be administered by the Consolidated Public
Retirement Board. The Teachers Employers Contribution Collection
Account shall be an interest-bearing account with interest credited
to and deposited in the account and transferred in accordance with
the provisions of this section.
(b) There shall be deposited into the Teachers Employers
Contribution Collection Account the following:
(1) Beginning on the first day of July, one thousand nine
hundred eighty-four, contributions Contributions of employers, shall be deposited in the employers accumulation fund through state
appropriations, and such amounts shall be included in the budget
bill submitted annually by the Governor;
(2) Beginning on the first day of July, one thousand nine
hundred ninety-two and ninety-three, two thousand five,
contributions from each county shall deposit in the employers
accumulation fund in an amount equal to six fifteen percent of all
salary paid in excess of that authorized for minimum salaries in
sections two and eight-a, article four, chapter eighteen-a of this
code and any salary equity authorized in section five of said
article or any county supplement equal to the amount distributed
for salary equity among the counties beginning on the first day of
July, one thousand nine hundred ninety-four, the rate shall be
seven and one-half percent; beginning on the first day of July, one
thousand nine hundred ninety-five, the rate shall be nine percent;
beginning on the first day of July, one thousand nine hundred
ninety-six, the rate shall be ten and one-half percent; beginning
on the first day of July, one thousand nine hundred ninety-seven,
the rate shall be twelve percent; beginning on the first day of
July, one thousand nine hundred ninety-eight, the rate shall be
thirteen and one-half percent; and beginning on the first day of
July, one thousand nine hundred ninety-nine and thereafter, the
rate shall be fifteen percent for each individual who was a member of the Teachers Retirement System before the first day of July, two
thousand five: Provided, That the rate shall be seven and one-half
percent for any individual who becomes a member of the Teachers
Retirement System for the first time on or after the first day of
July, two thousand five, or any individual who becomes a member of
the Teachers Retirement System as a result of the merger
contemplated in article seven-c of this chapter;
(3) The amounts transferred pursuant to section eighteen-a of
this article; and
(4) Any other moneys, available and not otherwise expended,
which may be appropriated or transferred to this account.
(c) Moneys on deposit in the Teacher Employers Contribution
Collection Account shall be transferred monthly in the following
order:
(1) To the Teachers Retirement System Fund the amount
certified by the Consolidated Public Retirement Board as the
actuarially required contribution;
(2) To the Pension Liability Redemption Fund the amount, if
any, appropriated in accordance with section eight, article eight,
chapter twelve of this code; and
(3) The balance, if any, to the Employee Pension and Health
Care Benefits Fund established under section thirty-nine, article
seven-a of this chapter.
(d) There is hereby continued in the State Treasury a separate
irrevocable trust designated the Teachers Retirement System Fund.
The Teachers Retirement System Fund shall be invested as provided
in section nine-a, article six, chapter twelve of this code.
(e) There shall be deposited into the Teachers Retirement
System Fund, the following:
(1) Moneys transferred from the Teachers Employers
Contribution Collection Account;
(2) Member contributions provided for in section fifteen of
this article;
(3) Gifts and bequests to the fund and any accretions and
accumulations which may properly be paid into and become a part of
the fund;
(4) Specific appropriations to the fund made by the
Legislature;
(5) Interest on the investment of any part or parts of the
fund; and
(6) Any other moneys, available and not otherwise expended,
which may be appropriated or transferred to the Teachers Retirement
System or the Fund.
(c) (f) The benefit fund Teachers Retirement System Fund shall
be the fund from which annuities shall be paid. Upon the
retirement of a member, that member's accumulated contributions shall be transferred from the teachers accumulation fund to the
benefit fund; the accumulated employers' contribution shall be
transferred from the employers accumulation fund to the benefit
fund; and annually a sum for prior service pension and disability
credits, if needed, shall be transferred from the reserve fund to
the benefit fund. Any deficit occurring in the benefit fund which
is not automatically met by payments to that fund, as provided for
by this article, shall be met by additional transfers from the
employers accumulation fund and, if necessary, by transfers from
the teachers accumulation fund.
(d) The retirement board is hereby authorized to accept gifts
and bequests. All gifts, bequests and interest earnings from
investments received by the board shall be deposited in the reserve
fund. Any funds that may come into possession of the retirement
system in this manner or which may be transferred from the teachers
accumulation fund by reason of the lack of a claimant or because of
a surplus in any of the funds, or any other moneys the disposition
of which is not otherwise provided for, shall be credited to the
reserve fund. The retirement board shall allow interest on the
contributions in the teachers accumulation fund. Such interest
shall be paid from the reserve fund and credited to the teachers
accumulation fund. Any deficit occurring in any fund which would
not be automatically covered by the payments to that fund as otherwise provided by this article shall be met by transfers from
the reserve fund to such fund. In the reserve fund shall be
accumulated moneys from retirement board appropriations to pay the
accrued liabilities of the system, caused by the granting of prior
service, ad hoc increases granted prior to the first day of July,
one thousand nine hundred eighty, and disability pensions. Costs
associated with board investments, such as premiums, accrued
interest and commissions, shall be paid from the reserve fund.
(e) The expense fund shall be the fund from which shall be
paid the expense incurred in the administration of the retirement
system. The retirement board is herewith authorized to pay, from
the expense fund, membership fees in such voluntary organizations
as the national council on teacher retirement, anything in this
code to the contrary notwithstanding. Interest on loans to members
shall be deposited in the expense fund.
(g) The Consolidated Public Retirement Board is herewith given
has sole authority to direct and approve the making of any and all
fund transfers as provided herein in this section, anything in this
code to the contrary notwithstanding.
(h) References in the code to the Teachers Accumulation Fund,
the Employers Accumulation Fund, the Benefit Fund, the Reserve Fund
and the Expense Fund mean the Teachers Retirement System Fund.
§18-7A-18a. Calculation of allocation to Teachers Employers Contribution Collection Account.
(a) Beginning the first day of June, one thousand nine hundred
ninety-one, the consolidated public retirement board, created
pursuant to article ten-d, chapter five of this code, shall make an
annual calculation of the aggregate full compensation actually
received by the following persons:
(1) Those persons employed on or after the first day of July,
one thousand nine hundred ninety-one who would have been teacher
members of the state teachers retirement system under this article
if such persons' employment had begun prior to such date; and
(2) Those persons employed on and after the first day of July,
one thousand nine hundred ninety-one, who would have been
nonteaching members of the state teacher's retirement system under
this article if such persons' employment had begun prior to such
date.
(b) There shall be an annual allocation from the State General
Revenue Fund to the reserve fund Teachers Employers Contribution
Collection Account, created by section eighteen of this article,
equal to the sum of seven and one-half percent of the aggregate
compensation totals of subdivisions one and two, subsection (a) of
this section actuarially required contribution, reduced by any
employer contributions and other allocated amounts.
There shall be an additional allocation in each year an amount equal to the total of all irrevocably forfeited amounts in the
suspension account established in section eleven, article seven-b
of this chapter plus earnings thereon which have been certified to
the several contributing employers as irrevocably forfeited in the
prior fiscal year and subsequently utilized used by said the
contributing employers to reduce their total aggregate contribution
requirements pursuant to section seventeen, article seven-b of this
chapter.
(c) (b) The additional allocation provided in this section
represents a funding method by which a part of a rational
amortization plan will be established to amortize the current
unfunded liability of the Teachers Retirement System created by
this article. The additional allocations are not and shall not be
construed to be moneys which are owed to, nor earned by any
employee. designated in subdivision (1) or (2), subsection (a) of
this section. The calculation of additional allocation provided
for herein is solely a mathematical formula to quantify the savings
in the state general revenue funds caused by the enactment of the
Teachers' Retirement Reform Act codified in article seven-b of this
chapter.
§18-7A-23a. Terminal benefits.
For the purposes of this section, the term "accumulated net
benefit" means the aggregate amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum
distributions paid to the member or to any other person on account
of the member's rights to benefits from the plan; (c) survivor
benefits paid to any person or persons on account of the member's
rights to benefits from the plan; and (d) any other distributions
on account of the member's rights to benefits from the plan whether
they are paid in the nature of a refund of contributions, interest
on contributions, lump sum distributions, or annuity type benefits.
The amounts counted will be the amounts actually paid without
regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated
employee contributions" means all money the member has contributed
to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct
remittance by the member to repay contributions and interest
previously distributed and direct remittance by the member to pay
imputed contributions for period which were not subject to
contributions but may be counted for benefit purposes under the
plan. The term accumulated employee contributions does not include
any amount credited under the provisions of the plan as interest on
member contributions.
For the purposes of this section, the term "member's account" means the excess of the accumulated employee contributions over the
accumulated net benefit payments at any point in time and the term
"member" includes each individual who has contributed, or will
contribute in the future, to the teachers retirement system,
including each retirant.
(a) This section provides for the payment of the balance in
the a retired member's account to paid in the manner described
herein in this section in the event that all claims to benefits
payable to, or on behalf of, a member expire before his or her
member account has been fully exhausted. The expiration of such
the rights to benefits would be on the occasion of later of either
the death of the retired member and any and all beneficiaries who
might have a claim to regular benefit payments under the plan, for
any form of benefit. Without limitation, this would include the
demise of beneficiaries of survivor annuities and beneficiaries of
any lump sum distributions drawing benefits under a straight life
annuity, or the death of a survivor annuitant drawing benefits
under any optional form of benefit selected by the retired member.
(b) In the event that all claims to benefits payable to, or on
behalf of, a retired member expire, and the accumulated employee
contributions exceed his or her the accumulated net benefit
payments paid to or on behalf of the retired member, the balance in
the retired member's account shall be paid to the person or persons as the retired member has nominated by written designation duly
executed and filed with the board of trustees. If there be is no
designated person or persons surviving the retired member following
the expiration of the claims, the excess of the accumulated
employee contributions over the accumulated net benefit, if any,
shall be paid to his or her the retired member's estate: In no
case may the plan retain any amount of the accumulated employee
contributions remaining in the member's account, but it shall
retain interest earned on the same accumulated employee
contributions in the instance of a member's or beneficiary's post-
retirement death. Provided, That the provisions of this section
are retroactive to all members who entered retirement status on or
after the ninth day of June, two thousand.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who
has had thirty-five years of total service as a teacher in West
Virginia, regardless of age, shall be is eligible for an annuity.
No new entrant nor present member shall be is eligible for an
annuity, however, if either has less than five years of service to
his or her credit.
(b) Any member who has attained the age of fifty-five years
and who has served thirty years as a teacher in West Virginia shall
be is eligible for an annuity.
(c) Any member who has served at least thirty but less than
thirty-five years as a teacher or nonteaching member in West
Virginia and is less than fifty-five years of age shall be is
eligible for an annuity, but the same annuity shall be the reduced
actuarial equivalent of the annuity the member would have received
if such the member were age fifty-five at the time such annuity was
applied for.
(d) The request for any annuity shall be made by the member in
writing to the Retirement Board, but in case of retirement for
disability, the written request may be made by either the member or
the employer.
(e) A member shall be is eligible for annuity for disability
if he or she satisfies the conditions in either subsection (a) or
(b) of this section and meets the conditions of subsection (c) of
this section as follows:
(a) (1) His or her service as a teacher or nonteaching member
in West Virginia must total at least ten years, and service as a
teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved.
(b) (2) His or her service as a teacher or nonteaching member
in West Virginia must total at least five years, and service as a teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved and said the disability is a direct
and total result of an act of student violence directed toward the
member.
(c) (3) An examination by a physician or physicians selected
by the Retirement Board must show that the member is at the time
mentally or physically incapacitated for service as a teacher, that
for such that service the disability is total and likely to be
permanent, and that he or she should be retired in consequence
thereof of the disability.
(f) Continuance of the disability of the retired teacher
member shall be established by medical examination, as prescribed
in the preceding paragraph subdivision (3), subsection (e) of this
section, annually for five years after retirement, and thereafter
at such times as required by the Retirement Board may require.
Effective the first day of July, one thousand nine hundred ninety-
eight, a member who has retired because of a disability may select
an option of payment under the provisions of section twenty-eight
of this article: Provided, That any option selected under the
provisions of section twenty-eight of this article shall be in all
respects the actuarial equivalent of the straight life annuity benefit the disability retiree receives or would receive if the
options under section twenty-eight of this article were not
available and that no beneficiary or beneficiaries of the
disability annuitant may receive a greater benefit, nor receive any
benefit for a greater length of time, than such the beneficiary or
beneficiaries would have received had the disability retiree not
made any election of the options available under said section
twenty-eight. In determining the actuarial equivalence, the Board
shall take into account the life expectancies of the member and the
beneficiary: Provided, however, That the life expectancies may at
the discretion of the Board be established by an underwriting
medical director of a competent insurance company offering
annuities. Payment of the disability annuity provided in this
article shall cease immediately if the Retirement Board finds that
the disability of the retired teacher no longer exists, or if the
retired teacher refuses to submit to medical examination as
required by this section.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the Retirement
Board effective before the first day of July, one thousand nine
hundred eighty, shall be paid the annuities which were approved by
the Retirement Board.
(b) Annuities approved by the Board effective after the thirtieth day of June, one thousand nine hundred eighty, shall be
computed as provided herein in this section.
(c) Upon establishment of eligibility for a retirement
allowance, a member shall be granted an annuity which shall be the
sum of the following:
(a) (1) Two percent of the member's average salary multiplied
by his or her total service credit as a teacher. In this paragraph
subdivision "average salary" shall mean means the average of the
highest annual salaries received by the member during any five
years contained within his or her last fifteen years of total
service credit: Provided, That the highest annual salary used in
this calculation for certain members employed by the West Virginia
Higher Education Policy Commission under its control shall be four
thousand eight hundred dollars, as provided by section fourteen-a
of this article and chapter;
(b) (2) The actuarial equivalent of the voluntary deposits of
the member in his or her individual account up to the time of his
or her retirement, with regular interest.
(d) The disability annuities of all teachers retired for
disability shall be based upon a disability table prepared by a
competent actuary approved by the Retirement Board.
(e) Upon the death of an annuitant who qualified for an
annuity as the surviving spouse of an active member or because of permanent disability, the estate of the deceased or beneficiary
designated for such purpose shall be paid the difference, if any,
between the member's contributions with regular interest thereon,
and the sum of the annuity payments. Upon the death of a spouse
who was named as the member's survivor, a retirant may elect an
annuity option approved by the Retirement Board in an amount
adjusted on a fair basis to be of equal actuarial value as the
annuity prospectively in effect relative to the surviving member at
the time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments.
In computing the monthly payments, fractions of a cent shall be
deemed considered a cent. The monthly payments shall cease with
the payment for the month within which the beneficiary dies, and
shall begin with the payment for the month succeeding the month
within which the annuitant became eligible under this article for
the annuity granted; in no case, however, shall an annuitant
receive more than four monthly payments which are retroactive after
the Board receives his or her application for annuity. Beginning
with the first day of July, one thousand nine hundred ninety-four,
the The monthly payments shall be made on the twenty-fifth day of
each month, except the month of December, when the payment shall be
made on the eighteenth day of December. If the date of payment
falls on a holiday, Saturday or Sunday, then the payment shall be made on the preceding workday.
(g) In case the Retirement Board receives data affecting the
approved annuity of a retired teacher, the annuity shall be changed
in accordance with the data, the change being effective with the
payment for the month within which the Board received the new data.
(h) Any person who has attained the age of sixty-five and who
has served at least twenty-five years as a teacher prior to the
first day of July, one thousand nine hundred forty-one, shall be is
eligible for prior service credit and for prior service pensions as
prescribed in this section.
§18-7A-28e. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the retirement system,
other than an increase in benefits or new benefits effected by
operation of law in effect on the effective date of this article,
in an amount that would exceed more than one percent of the accrued
actuarial liability of the system as of the last day of the
preceding fiscal year as determined in the annual actuarial
valuation for each plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving monthly benefit payments under the retirement system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, causes any
additional unfunded actuarial accrued liability in any of the West
Virginia state-sponsored pension systems as calculated in the
annual actuarial valuation for each plan during any fiscal year,
additional unfunded actuarial accrued liability of that pension
system shall be fully amortized over no more than the five
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the
certification of additional actuarial accrued liability, the
Governor shall submit the amount of the amortization payment each
year for the retirement system as part of the annual budget
submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for
active members due to retirement, death or disability as provided
for in the retirement system shall not be amended in such a manner
as to increase any existing benefits or to provide for new
benefits.
(d) The provisions of this section terminate effective the
first day of July, two thousand thirty-four: Provided, That if bonds are issued pursuant to article eight, chapter twelve of this
code, the provisions of this section shall not terminate while any
of the bonds are outstanding.
§18-7A-34. Loans to members.
(a) A An actively contributing member of the retirement system
upon written application may borrow from his or her individual
account in the Teachers Accumulation Fund, subject to these
restrictions:
(1) Loans shall be made in multiples of ten dollars, the
minimal loan being one hundred dollars and the maximum being eight
thousand dollars: Provided, That the maximum amount of any loan
when added to the outstanding balance of all other loans shall not
exceed the lesser of the following: (A) Fifty Eight thousand
dollars reduced by the excess (if any) of the highest outstanding
balance of loans during the one-year period ending on the day
before the date on which the loan is made, over the outstanding
balance of loans to the member on the date on which the loan is
made; or (B) fifty percent of the member's contributions to his or
her individual account in the Teachers Accumulations Fund:
Provided, however, That if the total amount of loaned money
outstanding exceeds forty million dollars, the maximum shall not
exceed three thousand dollars until the Retirement Board determines
that loans outstanding have been reduced to an extent that additional loan amounts are again authorized.
(2) Interest charged on the amount of the loan shall be six
percent per annum, or a higher rate as set by the Retirement Board:
Provided, That interest charged shall be commercially reasonable in
accordance with the provisions of Section 72(p)(2) of the Internal
Revenue Code, and the federal regulations issued thereunder. If
repayable in installments, the interest shall not exceed the annual
rate so established upon the principal amount of the loan, for the
entire period of the loan, and such charge shall be added to the
principal amount of the loan. The minimal interest charge shall be
for six months.
(3) No member shall be is eligible for more than one
outstanding loan at any time.
(4) If a refund is payable to the borrower or his or her
beneficiary before he or she repays the loan with interest, the
balance due with interest to date shall be deducted from such the
refund.
(5) From his or her monthly salary as a teacher or a
nonteacher the member shall pay the loan and interest by deductions
which will pay the loan and interest in substantially level
payments in not more than sixty nor less than six months. Upon
notice of loan granted and payment due, the employer shall be is
responsible for making such the salary deductions and reporting them to the Retirement Board. At the option of the Retirement
Board, loan deductions may be collected as prescribed herein for
the collection of members' contribution, or may be collected
through issuance of warrant by employer. If the borrower decides
to make loan payments while not paid for service as a teacher, is
no longer employed as a teacher or nonteaching member, the borrower
must make monthly loan payments directly to the Consolidated Public
Retirement Board and the Retirement Board must accept such the
payments.
(6) The entire unpaid balance of any loan, and interest due
thereon, shall, at the option of the Retirement Board, become due
and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events
of default: (A) Any payment of principal and accrued interest on
a loan remains unpaid after the same it becomes due and payable
under the terms of the loan or after such the grace period as may
be established in the discretion of the Retirement Board; (B) the
borrowing member attempts to make an assignment for the benefit of
creditors of his or her refund or benefit under the retirement
system; or (C) any other event of default set forth in rules
promulgated by the Retirement Board in accordance with the
authority granted pursuant to section one, article ten-d, chapter
five of this code: Provided, That any refund or offset of an unpaid loan balance shall be made only at the time the member is
entitled to receive a distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Retirement Board may determine.
(8) Notwithstanding anything herein to the contrary, the loan
program authorized by this section shall comply with the provisions
of Sections 72(p)(2) and 401 of the Internal Revenue Code, and the
federal regulations issued thereunder, and accordingly, the
Retirement Board is authorized to: (A) Apply and construe the
provisions of this section and administer the plan loan program in
such a manner as to comply with the provisions of Sections 72(p)(2)
and 401 of the Internal Revenue Code and the federal regulations
issued thereunder; (B) adopt plan loan policies or procedures
consistent with these federal law provisions; and (C) take such
actions as it deems necessary or appropriate to administer the plan
loan program created hereunder in accordance with these federal law
provisions. The Retirement Board is further authorized in
connection with the plan loan program to take any actions that may
at any time be required by the Internal Revenue Service regarding
compliance with the requirements of Section 72(p)(2) or 401 of the
Internal Revenue Code, and the federal regulations issued
thereunder, notwithstanding any provision in this article to the contrary.
(b) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any teacher or nonteacher who becomes a member of the Teachers
Retirement System on or after the first day of July, two thousand
five: Provided, That a member is eligible for loan under
subsection (c), section six, article seven-c of this chapter to pay
all or part of the one and one-half percent contribution for
service in the Defined Contribution Plan.
§18-7A-39. Employee Pension and Health Care Benefits Fund.
(a) There is hereby created in the State Treasury a special
revenue account designated as the "Employee Pension and Health Care
Benefits Fund" to be administered by the Department of
Administration. Funds in this account may be invested in the
manner permitted by the provisions of article six, chapter twelve
of this code, with all interest income credited to this Fund.
(b) Effective the first day of July, two thousand five, any
savings realized from the reduction in employer contributions for
current retirement benefits, being the difference between the
required employer contributions that would have been required into
the Teachers Defined Contribution System as in effect immediately
prior to the first day of July, two thousand five, and the required
employer contribution for normal cost into the State Teachers Retirement System on and after the first day of July, two thousand
five, shall be deposited into the Employee Pension and Health Care
Benefits Fund. The Consolidated Public Retirement Board shall
determine the annual amount of the savings based on the annual
actuarial valuation for the plan prepared as of the first day of
July following the end of each fiscal year and certify the amount
to the Governor by the thirty-first day of January of that fiscal
year. The Governor shall submit the amount of the savings as part
of the annual budget submission or in an executive message to the
Legislature.
(c) Moneys in the Employee Pension and Health Care Benefits
Fund are to be used and expended to pay for the cost of unfunded
health care benefits or unfunded pension benefits, or to be
transferred into the Pension Liability Redemption Fund created in
section eight, article eight, chapter twelve of this code.
§18-7A-40. Higher education employees.
Nothing in this article or article seven-b of this chapter
shall be construed:
(1) To be in conflict with section four-a, article twenty-
three, chapter eighteen of this code; or
(2) To affect the membership of higher education employees who
are currently members of either the State Teachers Retirement
System created in this article or the Teachers Defined Contribution Retirement System created in article seven-b of this chapter:
Provided, That if the merger contemplated by article seven-c of
this chapter occurs, any higher education employees who are
currently members of the Teachers Defined Contribution Retirement
System shall become members of the Teachers Retirement System.
ARTICLE 7B. TEACHERS DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly require a
different meaning:
(1) "Defined contribution system" or "system" means the
Teachers Defined Contribution Retirement System created and
established by this article:
(2) "Existing retirement system" means the State Teachers
Retirement System established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or
employs a member of the existing retirement system;
(4) "Consolidated Board" or "Board" means the Consolidated
Public Retirement Board created and established pursuant to article
ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if
regularly employed for full-time service: (A) Any person employed
for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents of schools and assistant county superintendents of schools; (E) any
county school attendance director holding a West Virginia teacher's
certificate; (F) the executive secretary of the retirement board;
(g) (F) members of the research, extension, administrative or
library staffs of the public schools; (h) (G) the State
Superintendent of Schools, heads and assistant heads of the
divisions under his or her supervision, or any other employee under
the State Superintendent performing services of an educational
nature; (i) (H) employees of the State Board of Education who are
performing services of an educational nature; (j) (I) any person
employed in a nonteaching capacity by the State Board of Education,
any county board of education or the State Department of Education
or the teachers retirement board, if that person was formerly
employed as a teacher in the public schools; (k) (J) all classroom
teachers, principals and educational administrators in schools
under the supervision of the Division of Corrections and the
Department of Health and Human Resources; (l) (K) any person who is
regularly employed for full-time service by any county board of
education or the State Board of Education or the teachers
retirement board; and (m) (L) the administrative staff of the
public schools including deans of instruction, deans of men and
deans of women, and financial and administrative secretaries;
(6) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least
ten months, a month being defined as twenty employment days:
Provided, That no more than one year of service may be accumulated
in any twelve-month period;
(8) "Employer" means the agency of and within the State of
West Virginia which has employed or employs a member;
(9) "Compensation" means the full compensation actually
received by members for service whether or not a part of the
compensation is received from other funds, federal or otherwise,
than those provided by the state or its subdivisions;
(10) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the
employee's regular pay periods, and deposited into the member's
individual annuity account within the Defined Contribution
Retirement System;
(12) "Employer contribution" means an amount deposited into
the member's individual annuity account on a periodic basis
coinciding with the employee's regular pay period by an employer
from its own funds;
(13) "Annuity account" or "annuity" means an account established for each member to record the deposit of member
contributions and employer contributions and interest, dividends or
other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active
employment of a participating employer and completion of all
conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical
incapacity requiring the absence from employment service for at
least six months: Provided, That the incapacity is shown by an
examination by a physician or physicians selected by the Board:
Provided, however, That for employees hired on or after the first
day of July, two thousand five, permanent, total disability means
an inability to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can
be expected to result in death, or has lasted or can be expected to
last for a continuous period of not less than twelve months and the
incapacity is so severe that the member is likely to be permanently
unable to perform the duties of the position the member occupied
immediately prior to his or her disabling injury or illness;
(16) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending on the
following thirtieth day of June;
(17) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in
which the member attains age seventy-one and one-half years; or (b)
the calendar year in which the member retires or otherwise ceases
employment with a participating employer after having attained the
age of seventy and one-half years; and
(18) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
§18-7B-7. Participation in Teachers Defined Contribution
Retirement System; limiting participation in existing Teachers
Retirement System.
(a) Beginning the first day of July, one thousand nine hundred
ninety-one, and except as provided for in this section, the
Teachers Defined Contribution Retirement System shall be the single
retirement program for all new employees whose employment commences
on or after that date and all new employees shall be required to
participate. No additional new employees except as may be provided
for in this section may be admitted to the existing Teachers
Retirement System.
(b) Members of the existing Teachers Retirement System whose
employment continues beyond the first day of July, one thousand
nine hundred ninety-one, and those whose employment was terminated
after the thirtieth day of June, one thousand nine hundred
ninety-one, under a reduction in force are not affected by subsection (a) of this section and shall continue to contribute to
and participate in the existing Teachers Retirement System without
a change in plan provisions or benefits.
(c) Any person who was previously a member of the Teachers
Retirement System and who left participating employment before the
creation of the Defined Contribution System on the first day of
July, one thousand nine hundred ninety-one, and who later returned
to participating employment after the effective date of this
section has the right to elect to return to the existing Teachers
Retirement System or to elect to participate in the Defined
Contribution System. The election shall be made at the time of his
or her reemployment, is irrevocable and shall be made upon forms
approved by and filed with the West Virginia Consolidated Public
Retirement Board.
(d) Any person who was, prior to the first day of July, one
thousand nine hundred ninety-one, a member of the existing Teachers
Retirement System who left participating employment before the
creation of the Teachers Defined Contribution Retirement System on
the first day of July, one thousand nine hundred ninety-one, and
who later returned to participating employment after that date and
who was precluded from returning to the existing Teachers
Retirement System as a result of prior provisions of this section,
may elect, pursuant to the provisions of this section, readmission to the existing Teachers Retirement System: Provided, That persons
who are eligible to, and who make the election to, terminate their
participation in the Defined Contribution System and to return to
participation in the existing Teachers Retirement System as
provided for in this section shall make the election, on a form
approved by and filed with the West Virginia Consolidated Public
Retirement Board on or before the thirtieth day of June, two
thousand two: Provided, however, That as a condition of the right
of readmission to the existing Teachers Retirement System, persons
a person making the election provided for in this section whose
Defined Contribution Account had not, prior to such election, been
divided by a qualified domestic relations order, shall pay an
additional contribution to the existing Teachers Retirement System
equal to one and one-half percent of his or her annual gross
compensation earned for each year during which he or she
participated in the Defined Contribution System and shall consent
and agree to the transfer of his or her total account balance in
the Defined Contribution System as of the most recent plan
valuation immediately preceding his or her transfer to the existing
Teachers Retirement System. For persons a person making the
election provided for in this section whose defined contribution
account had, prior to such the election, previously been divided by
a qualified domestic relations order, the cost to such person to transfer to the existing Teachers Retirement System shall be
actuarially determined by the Consolidated Public Retirement Board.
Upon verification of that person's eligibility to return to
participation in the existing Teachers Retirement System and the
tender and transfer of funds as provided for in this subsection,
persons a person making this election shall receive service credit
for the time the member participated in the Defined Contribution
System as if his or her participation had been in the existing
Teachers Retirement System: Provided further, That the right to
terminate participation in the Defined Contribution System and to
resume participation in the existing Teachers Retirement System as
provided for in this section is irrevocable and shall not apply to
any person who, while members a member of the Teachers Retirement
System, voluntarily elected to terminate his or her membership in
the Teachers Retirement System and to become a participant in the
Defined Contribution System pursuant to section eight of this
article.
(e) Any employee whose employment with an employer was
suspended or terminated while he or she served as an officer with
a statewide professional teaching association, is eligible for
readmission to the existing retirement system in which he or she
was a member.
(f) An employee whose employment with an employer or an existing employer is suspended as a result of an approved leave of
absence, approved maternity or paternity break in service or any
other approved break in service authorized by the Board is eligible
for readmission to the existing retirement system in which he or
she was a member.
(g) In all cases in which a question exists as to the right of
an employee to readmission to membership in the existing Teachers
Retirement System, the Consolidated Public Retirement Board shall
decide the question.
(h) Any individual who is not a "member" or "employee" as
defined by section two of this article and any individual who is a
leased employee is not eligible to participate in the Teachers
Defined Contribution System. For purposes of this section, a
"leased" employee means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or other similar organization. In all cases
in which a question exists as to whether an individual is eligible
for membership in this system, the Consolidated Public Retirement
Board shall decide the question.
(i) Effective the first day of July, two thousand five, and
continuing through the first day of two thousand six, any employee
of River Valley Child Development Services, Inc., who is a member
of the Teachers Defined Contribution Retirement System may elect to withdraw from membership and join the private pension plan provided
by River Valley Child Development Services, Inc.
(j) River Valley Child Development Services, Inc., and its
successors in interest shall provide for their employees a pension
plan in lieu of the Teachers Defined Contribution Retirement System
on or before the first day of July, two thousand five, and
continuing thereafter during the existence of the River Valley
Child Development Services, Inc., and its successors in interest.
All new employees hired after the thirtieth day of June, two
thousand five, shall participate in the pension plan in lieu of the
Teachers Defined Contribution Retirement System.
(k) The administrative body of River Valley Child Development
Services, Inc., shall, on or before the first day of June, two
thousand five, give written notice to each employee who is a member
of the Teachers Defined Contribution Retirement System of the
option to withdraw from or remain in the system. The notice shall
include a copy of this section and a statement explaining the
member's options regarding membership. The notice shall include a
statement in plain language giving a full explanation and actuarial
projection figures, prepared by an independent actuary, in support
of the explanation regarding the individual member's current
account balance, vested and nonvested, and his or her projected
return upon remaining in the Teachers Defined Contribution Retirement System until retirement, disability or death, in
comparison with the projected return upon withdrawing from the
Teachers Defined Contribution Retirement System and joining a
private pension plan provided by River Valley Child Development
Center, Inc., and remaining therein until retirement, disability or
death. The administrative body shall keep in its records a
permanent record of each employee's signature confirming receipt of
the notice.
§18-7B-7a. Plan closed to persons employed for the first time
after June, 2005; former employees.
The Retirement System created and established in this article
shall be closed and no new members accepted in the system after the
thirtieth day of June, two thousand five. Notwithstanding the
provisions of sections seven and eight of this article, all persons
who are regularly employed for full-time service as a member or an
employee whose initial employment commences after the thirtieth day
of June, two thousand five, shall become a member of the State
Teachers Retirement System created and established in article
seven-a of this chapter: Provided, That any person rehired after
the thirtieth day of June, two thousand five, shall become a member
of the Teachers Defined Contribution Retirement System created and
established in this article, or of the Teachers Retirement System
created and established in article seven-a of this chapter, depending upon which system he or she last contributed to while he
or she was employed with an employer mandating membership and
contributions to one of those plans: Provided, however, That if,
and only if, the Teachers Defined Contribution Retirement System is
merged and consolidated with the Teachers Retirement System
pursuant to the provisions of article seven-c of this chapter, then
all employees shall be a member of the Teachers Retirement System
as of the first day of July, two thousand six, as provided in said
article.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the Defined Contribution
System shall contribute four and one-half percent of his or her
gross compensation by salary reduction deduction. Such The salary
reductions deductions shall be made by the employer at the normal
payroll intervals and shall be paid to the Teachers Defined
Contribution Retirement System within fifteen days of the end of
the pay period: Provided, That the Board may require any employer
to make the payments within such shorter period as it may
determine, upon at least sixty days notice to the employer, if the
Board determines the employer has the technological capacity to
transfer the funds within the shorter period. The employer
payments shall be remitted by the Board within five working days to
the private pension, insurance, annuity, mutual fund, or other qualified company or companies designated by the Board to
administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to
an account or accounts established in the name of the member and
held in trust for the benefit of the member. An account agreement
shall be issued to each member setting forth the terms and
conditions under which contributions are received, and the
investment and retirement options available to the member. The
Board shall promulgate by the thirtieth day of June, one thousand
nine hundred ninety-one propose for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
pursuant to section six of this article, rules defining the minimum
requirements for the investment and retirement options to be
provided to the members.
The consolidated public employees retirement board shall study
the feasibility of employees making personal contributions to the
defined contribution system in addition to those required by this
section and the impact of the United States Internal Revenue Code
of one thousand nine hundred eighty-six, as amended, upon such
contributions. The results of said study and recommendations for
legislation to authorize such additional payments shall be
presented to the committee on pensions and retirement of each house
of the Legislature on or before the first day of October, one thousand nine hundred ninety-six.
(c) Such rules The legislative rules proposed by the Board, to
the extent not inconsistent with the applicable provisions of the
Internal Revenue Code of the United States, shall provide for
varied retirement options including, but not limited to:
(1) Lump sum or periodic payment distributions;
(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;
(4) Variable annuities which gradually increase monthly
retirement payments: Provided, That said increased payments are
funded solely by the existing current value of the member's account
at the time the member's retirement payments commencement commence
and not, to any extent, in a manner which would require additional
employer or employee contributions to any member's account after
retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can
be made to members from their annuity account balances prior to
having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer
terminates after the completion of six complete years of employment
service shall be is eligible to terminate his or her annuity
account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus one
third of the employer contributions and any earnings thereon. Any
member whose employment with a participating employer terminates
after the completion of nine complete years of employment service
shall be is eligible to terminate his or her annuity account and
receive a distribution from the member's annuity account, in an
amount equal to the member's contribution plus two thirds of the
employer's contributions and any earnings thereon. Any member
whose employment with a participating employer terminates after the
completion of twelve complete years of employment service shall be
is eligible to terminate his or her annuity account and receive a
distribution of all funds contributed and accumulated in his or her
annuity account. Any member whose employment with a participating
employer terminates prior to the completion of six complete years
of employment service shall be is eligible to terminate his or her
annuity account and receive a distribution from the member's
annuity account, in an amount equal to the member's contribution
plus any earnings thereon: Provided, That on the death or
permanent, total disability of any member, that member shall be is
eligible to terminate his or her annuity account and receive all
funds contributed to or accumulated in his or her annuity account.
(b) (1) The Upon termination of employment, regardless of
whether the member has taken a distribution of all or a portion of his or her vested account, the remaining balance, if any, in the
member's employer account after the distribution that is not vested
shall be remitted and paid into a suspension account, hereby
created, to be administered by the Board. The Board shall
promulgate rules propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
regarding the distribution of any balance in the special account
created by this section: Provided, That any funds in the account
shall be used solely for the purpose of reducing employer
contributions in future years.
(2) Any account balances remitted to the suspension account
herein shall be maintained by the Board in said the suspension
account in the name of the terminated employee for a period of five
years following initial remittance to the suspension account the
member's termination of employment. For each said terminated
employee at the culmination of the aforesaid five-year period, the
Board shall certify in writing to each contributing employer the
amount of the account balances balance plus earnings thereon
attributable to each separate contributing employers employer's
previously terminated employees' accounts which have employee's
account which has been irrevocably forfeited due to the elapse of
a five-year period since termination pursuant to section sixteen of
this article.
(c) Upon certification to the several contributing employers
of the aggregate account balances plus earnings thereon which have
been irrevocably forfeited pursuant to this section, the several
contributing employers shall be permitted in the next succeeding
fiscal year or years to reduce their total aggregate contribution
requirements pursuant to section seventeen of this article, for the
then current fiscal year by an amount equal to the aggregate
amounts irrevocably forfeited and certified as such to each
contributing employer: Provided, That should the participating
employer no longer be contributing to the Defined Contribution
System, any funds in the account shall be paid directly to the
employer.
(d) Upon the utilization use of the amounts irrevocably
forfeited to any contributing employer as a reduction in the then
current fiscal year contribution obligation and upon notification
provided by the several contributing employers to the Board of
their intention to utilize use irrevocably forfeited amounts, the
Board shall direct the distribution of said the irrevocably
forfeited amounts from the suspension account to be deposited on
behalf of the contributing employer to the member annuity accounts
of its then current employees pursuant to section seventeen of this
article: Provided, That notwithstanding any provision of this
article to the contrary, when a member is or has been elected to serve as a member of the Legislature, and the proper discharge of
his or her duties of public office require requires that member to
be absent from his or her teaching, nonteaching or administrative
duties, the time served in discharge of his or her duties of the
legislative office are credited as time served for purposes of
computing service credit, regardless when this time was served:
Provided, however, That the Board may not require any additional
contributions from that member in order for the Board to credit him
or her with the contributing service credit earned while
discharging official legislative duties: Provided further, That
nothing herein may be construed to relieve the employer from making
the employer contribution at the member's regular salary rate or
rate of pay from that employer on the contributing service credit
earned while the member is discharging his or her official
legislative duties. These employer payments shall commence as of
the first day of July, two thousand three: And provided further,
That any member to which the provisions of this subsection apply
may elect to pay to the Board an amount equal to what his or her
contribution would have been for those periods of time he or she
was serving in the Legislature.
.§18-7B-12a. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any inconsistent provisions of this Defined Contribution System. This
section applies to plan years beginning after the thirty-first day
of December, one thousand nine hundred eighty-six. Notwithstanding
anything in this system to the contrary, the payment of benefits
under this article shall be determined and made in accordance with
Section 401(a)(9) of the Internal Revenue Code and the regulations
thereunder, including without limitation the incidental death
benefit provisions of Section 401(a)(9)(G) of the Internal Revenue
Code and the regulations thereunder. For this purpose, the
following provisions apply:
(a) The payment of benefits under the Defined Contribution
System to any member shall be distributed to him or her not later
than the required beginning date, or be distributed to him or her
commencing not later than the required beginning date, in
accordance with regulations prescribed under Section 401(a)(9) of
the Internal Revenue Code, over the life of the member or over the
lives of the member and his or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the system has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the system shall be
distributed by the thirty-first day of December of the calendar
year containing the fifth anniversary of the member's death, except
as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half
years; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year in which the member died; or (ii) the thirty-
first day of December of the calendar year following the calendar
year in which the spouse died.
(d) For purposes of this section, any amount paid to a child
of a member will be treated as if it had been paid to the surviving
spouse of the member if such the remaining amount becomes payable
to the surviving spouse when the child reaches the age of majority.
§18-7B-16. Years of employment service.
(a) A member of the Defined Contribution System who terminates
employment with a participating employer and does not remove any
funds from his or her annuity vested employee and employer account,
or who removes the funds and repays them withing five years after
termination, and becomes reemployed with a participating employer
within five years shall retain his or her previous years of
employment service for purposes of the provisions of section eleven
of this article. does not forfeit any amounts placed into the
suspension account pursuant to section eleven of this article and
they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for
vesting purposes under section eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any
legislative rule contained in series three, involuntary cash-outs
to members may not be made after the thirtieth day of June, two
thousand five.
ARTICLE 7C. MERGER OF TEACHERS DEFINED CONTRIBUTION RETIREMENT SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the "Teachers Retirement Equity
Act".
§18-7C-2. Legislative findings and purpose.
(a) The Legislature declares that the State of West Virginia
and its citizens have always believed in a strong public education
system. The Constitution of this State mandates a thorough and
efficient public education system. The Legislature notes that the
quality of our state's education system is dependent, inter alia,
upon the motivation and quality of its teachers and educational
service personnel.
(b) The Legislature finds and declares that the State of West
Virginia is privileged to be the home of some of the best teachers
and education service personnel in this nation, and that our
teachers and education service personnel are dedicated and hard
working individuals. The Legislature further finds and declares
that our teachers and education service personnel deserve a
retirement program whereby they know in advance what their
retirement benefit will be, a defined benefit retirement program
where our teachers and service personnel will not have to bear the
risk of investment performance to receive their full retirement
benefit. The Legislature notes that uncertainty exists in the investment markets, especially in the post September eleventh era,
and that placing this risk and uncertainty upon the state in the
form of a defined benefit plan will protect and ensure a meaningful
retirement benefit for our teachers and educational service
personnel.
(c) The Legislature declares that it is in the best interests
of the teachers and public education in this state and conducive to
the fiscal solvency of the Teachers Retirement System that the
Teachers Defined Contribution Retirement System be merged with the
State Teachers Retirement System.
(d) The Legislature also finds that a fiscally sound
retirement program with an ascertainable benefit aids in the
retention and recruitment of teachers and school service personnel,
and that the provisions of this article are designed to accomplish
the goals set forth in this section.
(e) The Legislature has studied this matter diligently and in
making the determination to merge the two plans has availed itself
of an actuarial study of the proposed merger by the actuary of the
Consolidated Public Retirement Board as well as engaging the
service of two independent actuaries.
(f) The Legislature further finds and declares that members of
a defined contribution system who must bear the attendant market
risk and performance of their investments are truly being provided a significant and greater benefit where the defined contribution
system is replaced with a defined benefit system in which the
employer bears the risk of market fluctuations and investment
performance, especially where those members decide through an
election process whether to trade the defined contribution system
for a defined benefit system.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Defined Contribution System" means the Teachers Defined
Contribution System created and established in article seven-b of
this chapter.
(2) "Existing retirement system" or "State Teachers Retirement
System" means the State Teachers Retirement System created and
established in article seven-a of this chapter.
(3) "Board" means the Consolidated Public Retirement Board
created and established in article ten-d, chapter five of this code
and its employees.
(4) "Member" means and includes any person who has at least
one dollar in the Defined Contribution System.
(5) "Assets" or "all assets" means all member contributions,
employer contributions and interest or asset appreciation in a
member's Defined Contribution Account, less any applicable fees as approved by the Board.
(6) "Salary" or "annual salary" means the annual contract
salary for those persons working in accordance with an employment
contract and in any other event as an annualized amount determined
by multiplying a person's hourly rate of pay by two thousand eighty
hours.
(7) "Date of merger" means, in the event of a positive vote on
the merger, the first day of July, two thousand six.
§18-7C-4. Merger.
On the first day of July, two thousand six, the Teachers
Defined Contribution Retirement System created and established in
this article shall be merged and consolidated with the Teachers
Retirement System created and established in article seven-a of
this chapter, pursuant to the provisions of this article:
Provided, That if the majority of the voting members of the
Teachers Defined Contribution Retirement System do not elect in
favor of the merger, then all of the provisions of this article are
void and of no force and effect, and the Defined Contribution
System created and established in article seven-b of this chapter
shall continue as the retirement system for all members in that
system as of the thirtieth day of June, two thousand six:
Provided, however, That prior to the merger and consolidation the
state shall deposit into the Teachers Retirement System the amount necessary to cover any additional unfunded actuarial accrued
liability which results to the system on the date that the assets
and liabilities of the Teachers Defined Contribution Retirement
System are merged into the Teachers Retirement System as certified
by the Consolidated Public Retirement Board.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two
thousand five, the Consolidated Public Retirement Board shall begin
an educational program with respect to the merger of the Defined
Contribution Plan with the State Teachers Retirement System. This
education program shall address, at a minimum, the law providing
for the merger, the mechanics of the merger, the election process,
relevant dates and time periods, the benefits, potential advantages
and potential disadvantages if members fail or refuse to approve
the merger and thereby elect to remain in the Defined Contribution
System, the benefits, potential advantages and potential
disadvantages of becoming a member of the Teachers Retirement
System, potential state and federal tax implications in general
attendant to the various options available to the members and any
other pertinent information considered relevant by the Board. The
Board shall provide this information through its website, by
written materials, electronic materials or both written and
electronic materials delivered to each member and by classes or seminars, if, in the best judgment of the Board, the classes and
seminars are required to provide the necessary education for
members to make an informed decision with respect to the election.
The Board shall also provide this information through computer
programs, or, at the discretion of the Board, through a program of
individual counseling which is optional on the part of the member,
and by any other educational program or programs considered
necessary by the Board.
(b) The Board shall provide each member with a copy of the
written or electronic educational materials and with a copy of the
notice of the election. The notice shall provide full and
appropriate disclosure regarding the merger and of the election
process, including the date of the election. The Board shall also
cause notice of the election to be published in at least ten
newspapers of general circulation in this state. This notice shall
be by Class III legal advertisement published in accordance with
the provisions of article three, chapter fifty-nine of this code.
The Board shall cause this notice to be published not later than
thirty days prior to the beginning of the election period and not
sooner than sixty days prior to the beginning of the election
period.
(c) It is the responsibility of each member of the Defined
Contribution Plan to keep the Board informed of his or her current address. If a member does not keep the Board informed of his or
her current address, he or she is considered to have waived his or
her right to receive any information from the Board with respect to
the purposes of this article.
(d) Once the Board has complied with the provisions of this
section, every member of the Defined Contribution Plan is
considered to have actual notice of the election and all matters
pertinent to the election.
§18-7C-6. Conversion of assets from Defined Contribution System to
State Teachers Retirement System.
(a) If a majority of members voting elect to merge the Defined
Contribution System into the State Teachers Retirement System, the
consolidation and merger shall be governed by the provisions of
this article, the Defined Contribution Retirement System shall not
exist after the thirtieth day of June, two thousand six, and all
members of that system shall become members of the State Teachers
Retirement System as provided in this article.
(b) Following the election, if the vote is in favor of the
merger, the Board shall transfer all assets in the defined
contribution account into the State Teachers Retirement System and
members have the option to pay into the State Teachers Retirement
System a one and one half of one percent contribution for service
in the Defined Contribution Plan being recognized in the State Teachers Retirement System. This contribution shall be calculated
based on the member's salary as of the thirtieth day of June, two
thousand five, and the members attained age on that date, applying
both an annual backward salary scale projection from that date for
prior years based upon the salary scale assumption applied in the
actuarial valuation dated the first day of July, two thousand four,
for the Teachers Retirement System and a one year forward salary
scale projection for the year ending on the thirtieth day of June,
two thousand six.
(c) The Board shall make available to the members a loan in
accordance with the provisions of section thirty-four, article
seven-a of this chapter to be used by the members to pay all or a
part of the one and one-half percent amount established in this
section. Notwithstanding any provision of this code, any rule or
any policy of the Board to the contrary, the interest rate on any
loan used to pay the one and one-half percent amount may not exceed
seven and one-half percent per annum and the amount total borrowed
for this section may not exceed twelve thousand dollars. In the
event a plan loan is used to pay the one and one-half percent, the
Board shall make any necessary actuarial adjustments at the time
the loan is made. The Board shall make this plan loan available
for members until the thirtieth day of June, two thousand seven.
(d) The Board shall develop and institute a payroll deduction program for the repayment of the plan loan established in this
section.
(e) If the merger and consolidation is elected by a majority
of those persons voting, as of the first day of July, two thousand
six, the members' contribution rate shall become six percent of his
or her salary or wages and all members who make a contribution into
the State Teachers Retirement System on or after the first day of
July, two thousand six, shall be governed by the provisions of
article seven-a of this chapter, subject to the provisions of this
article.
(f) In the event a member has withdrawn or cashed out part of
his or her defined contribution plan, that member will not be given
credit for those moneys cashed out or withdrawn. The Board shall
make an actuarial determination as to the amount of credit a member
loses on the amounts he or she has withdrawn or cashed out, which
shall be expressed as a loss of service credit: Provided, That a
member may repay those amounts he or she previously cashed out or
withdrew, along with interest determined by the Board and receive
the same credit as if the withdrawal or cash out never occurred.
If the repayment is five or more years following the cash out or
withdrawal, then he or she must repay any forfeited employer
contribution account balance along with interest determined by the
Board in addition to repaying the cash out or withdrawn amount.
(g) Where the member has cashed out of his or her teacher
defined contribution plan account balance after the last day of
June, two thousand one, and that member wishes to repurchase
defined contribution plan service after the thirtieth day of June,
two thousand six, then the member shall repay the teachers
retirement plan.
(h) Any prior service in the State Teachers Retirement System
a member may have is not affected by the provisions of this
article.
§18-7C-7. Service credit in State Teachers Retirement System
following merger.
Any member transferring all of his or her assets from the
Defined Contribution System to the State Teachers Retirement System
pursuant to the provisions of this article, and who has not made
any withdrawals from his or her defined contribution plan, is
entitled to service credit in the State Teachers Retirement System
for each year, or part of a year, as governed by the provisions of
article seven-a of this chapter, the member worked and contributed
to the Defined Contribution Plan. Any member who has made
withdrawals or cash outs will receive service credit based upon the
amounts transferred and the Board shall make the appropriate
actuarial determination of and the appropriate actuarial adjustment
to the service credit the member will receive.
§18-7C-8. Election; Board may contract for professional services.
(a) The Board shall arrange for and hold an election for the
members of the defined contribution plan on the issue of merging
and consolidating the Defined Contribution Plan into the State
Teachers Retirement Plan with the result being that, if a majority
of the members casting ballots vote in the positive on the issue,
all members of the Defined Contribution Plan will transfer, or have
transferred, all assets held by them or on their behalf in the
Defined Contribution Plan to, and they shall become members of and
be entitled to the benefits of, the State Teachers Retirement
System and be governed by the provisions of the State Teachers
Retirement System subject to the provisions of this article:
Provided, That at least one-half of the members of the Defined
Contribution Plan must vote on the question in order for the
election to be valid and binding.
(b) Any person who has one dollar or more in a defined
contribution account created and established pursuant to article
seven-b of this chapter, may vote on the question of the merger.
(c) The Board may retain the services of the professionals it
considers necessary to: (1) Assist in the preparation of
educational materials for members of the Defined Contribution Plan
to inform these members of their options in the election; (2)
assist in the educational process of the members; (3) assist in the election process and the election; and (4) ensure compliance with
all relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process
set forth in this article in specific, and due to the nature of the
professional services required by the Consolidated Public
Retirement Board in general, the provisions of article three,
chapter five-a of this code, relating to the Division of Purchasing
of the Department of Administration do not apply to any contracts
for any actuarial services, investment services, legal services or
other professional services authorized under the provisions of this
article.
(e) The election provided for in this section may be held
through certified mail or in any other way the Board determines is
in the best interest of the members. Each ballot shall contain the
following language, in bold fifteen point type: "By casting this
ballot I am making an educated, informed and voluntary choice as to
my retirement and the retirement system of which I wish to be a
member. I am also certifying that I understand the consequences of
my vote in this election." Each ballot shall be signed by the
member voting. The Board shall retain the ballots in a permanent
file. Any unsigned ballot is void.
(f) The election period shall begin not later than the first
day of March, two thousand six, and the Board shall ascertain the results of the election not later than the last day of March, two
thousand six. The Board shall certify the results of the election
to the Governor, to the Legislature and to the members not later
than the fifth day of April, two thousand six.
(g) The election period shall terminate and no votes may be
cast or counted after the twelfth day of March, two thousand six,
except that if the election is conducted through the United States
mails, the ballot shall be postmarked not later than the twelfth
day of March, two thousand six, in order to be counted.
(h) The Board shall take all necessary steps to see that the
merger does not affect the qualified status with the Internal
Revenue Service of either retirement plan.
§18-7C-9. Election considered final.
(a) The election is considered final and each member, whether
he or she votes, or fails to vote, shall thereafter be bound by the
results of the election. Every member is considered to have made
an informed, educated, knowing and voluntary decision and choice
with respect to the election. Those members who fail or refuse to
vote are also considered to have made an informed, educated,
knowing and voluntary decision and choice with respect to the
election and with respect to voting and shall be bound by the
results of the election as if he or she voted in the election.
(b) Only one election may be held pursuant to the provisions of this article on the issue of merging and consolidating the
Defined Contribution Plan with the State Teachers Retirement Plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against
his or her defined contribution account is allowed to repurchase
service in the State Teachers Retirement System by repaying any
moneys previously distributed to the alternate payee along with the
interest as set by the Board: Provided, That a member shall repay
any amounts under this section by the last day of June, two
thousand twelve. The provisions of this section are void and of no
effect if the members of the Defined Contribution Plan fail to
elect to merge and consolidate the Defined Contribution Plan with
the State Teachers Retirement System.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger
provided in this article occurs, is subject to the vesting schedule
set forth in article seven-a of this chapter: Provided, That if a
member is vested under the Defined Contribution Plan and his or her
last contribution was not made to the State Teachers Retirement
System, that member is subject to the vesting schedule set forth in
article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Defined Contribution Plan who has made a contribution to the State Teachers Retirement System after the
date of merger is guaranteed a minimum benefit equal to his or her
contributions to the Defined Contribution Plan as of the thirtieth
day of June, two thousand six, plus his or her vested employer
account balance as of that date, as stated by the Board or the
Board's professional contractor.
(b) A member of the Defined Contribution Plan who has made
contributions to the State Teachers Retirement System after the
thirtieth day of June, two thousand six, where the Defined
Contribution Plan has been merged into the State Teachers
Retirement System pursuant to the provisions of this article, shall
have, upon eligibility to receive a distribution under article
seven-a of this chapter, at a minimum, the following three options:
(1) The right to receive an annuity from the State Teachers
Retirement System created and established in article seven-a of
this chapter, based upon the benefit and vesting provisions of that
article; (2) the right to withdraw from the State Teachers
Retirement Plan and receive his or her member accumulated
contributions plus regular interest thereon as set forth in article
seven-a of this chapter; or (3) the right to withdraw and receive
his or her original vested defined contribution account balance as
of the date of the merger as determined by the Board or its
professional third party benefits administrator pursuant to the vesting provisions of section twelve of this article.
(c) Any member of the Teachers Defined Contribution System who
makes no contribution to the State Teachers Retirement System
following approval of the merger and following the date of merger
is guaranteed the receipt of the amount in his or her total vested
account in the Defined Contribution Plan on the date of merger plus
interest thereon at four percent accruing from the date of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by
the Board following the election, if the result of the election is
in favor of merger and consolidation, may petition the Board and
receive an administrative hearing on the matter in dispute. The
administrative decision may be appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or
void, the remaining provisions of this article shall be void and of
no effect and, to this end, the provisions of this article are
hereby declared to be nonseverable.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-6c. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in any of the West Virginia
state-sponsored pension systems as calculated in the annual
actuarial valuation for the plan during any fiscal year, the
additional unfunded actuarial accrued liability of the system shall
be fully amortized over no more than the five consecutive fiscal
years following the date the increase in benefits or new benefits
become effective as certified by the consolidated public retirement
board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the system as part of the
annual budget submission or in an executive message to the
Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for
active members due to retirement, death or disability as provided
for in the system shall not be amended in such a manner as to
increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the
first day of July, two thousand nineteen: Provided, That if bonds
are issued pursuant to article eight, chapter twelve of this code,
the provisions of this section shall not terminate while any of the
bonds are outstanding.
On motion of Senator Chafin, the following amendment to
Senator Plymale's amendment to the bill (Eng. H. B. No. 2984) was
reported by the Clerk:
On page forty-three, section forty-four, after the word
"paid." by inserting the following: Any member who retired
pursuant to subsection (b), section twenty-two-c of this article,
but whose notification and application for retirement was not
processed, shall be granted such retirement benefits as provided by
law upon showing compliance with all statutory requirements.
Following discussion,
The question being on the adoption of Senator Chafin's
amendment to Senator Plymale's amendment to the bill (Eng. H. B.
No. 2984), and on this question, Senator Deem demanded the yeas and
nays.
To which demand, Senator Bowman objected.
Thereafter, Senator Deem's demand for a roll call was
sustained.
The roll being taken, the yeas were: Bailey, Chafin, Dempsey,
Fanning, Helmick, Hunter, Kessler, Love, Minard, Oliverio, White,
Yoder and Tomblin (Mr. President)--13.
The nays were: Barnes, Boley, Bowman, Caruth, Deem, Edgell,
Facemyer, Foster, Guills, Harrison, Jenkins, Lanham, McCabe,
McKenzie, Minear, Plymale, Prezioso, Sharpe, Sprouse, Unger and
Weeks--21.
Absent: None.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Chafin's amendment
to Senator Plymale's amendment to the bill (Eng. H. B. No. 2984)
rejected.
The question now being on the adoption of Senator Plymale's
amendment to the bill.
Following discussion and a point of inquiry to the President,
with resultant response thereto,
The question being on the adoption of Senator Plymale's
amendment to the bill, the same was put and prevailed.
Having been engrossed, the bill (Eng. H. B. No. 2984), as just
amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Harrison, Lanham, Minear and Oliverio--4.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2984) passed.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the title of the bill was withdrawn.
On motion of Senator Plymale, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one through nine, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2984--A Bill to amend and reenact §5-5-3
of the Code of West Virginia, 1931, as amended; to amend and reenact §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-23,
§5-10-26, §5-10-27, §5-10-31 and §5-10-44 of said code; to amend
said code by adding thereto a new section, designated §5-10-22h; to
amend and reenact §5-10A-2 and §5-10A-3 of said code; to amend said
code by adding thereto a new section, designated §5-10A-11; to
amend and reenact §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of
said code; to amend and reenact §12-8-2, §12-8-3, §12-8-4, §12-8-5,
§12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code; to amend said
code by adding thereto a new section, designated §12-8-15; to amend
and reenact §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-
2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of said
code; to amend said code by adding thereto four new sections,
designated §15-2-25b, §15-2-31a, §15-2-31b and §15-2-39a; to amend
and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-
2A-9, §15-2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and
§15-2A-19 of said code; to amend said code by adding thereto four
new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and §15-
2A-22; to amend and reenact §18-7A-3, §18-7A-14, §18-7A-17, §18-7a-
18, §18-7a-18a, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of
said code; to amend said code by adding thereto three new sections,
designated §18-7A-28e, §18-7A-39 and §18-7A-40; to amend and
reenact §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and
§18-7B-16 of said code; to amend said code by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; to amend said
code by adding thereto a new article, designated §18-7C-1, §18-7C-
2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18-
7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and
to amend said code by adding thereto a new section, designated §51-
9-6c, all relating to state pensions and retirement generally;
providing comprehensive changes to certain plans administered by
the Consolidated Public Retirement Board; enacting the Governor's
Pension Reform Act of 2005; rights of members' unused, accrued
leave in final average salary in the Public Employees Retirement
System; limitations on benefit increases; bond pledges and
covenants regarding unfunded liabilities; limiting time for
amortization; amending and adding definitions in the Public
Employees Retirement System; clarifying use of restricted qualified
military service credit to one retirement system; vesting of
retirement benefits for those members of the armed forces
accumulating nine or more years of credited service who are called
from participating employment to compulsory military service or
armed conflict and who die during, or as a result of, compulsory
active service and prior to resumption of participating employment;
setting time limit on application; restricting certain rights of
members to select a plan beneficiary; establishing a cap on the
amount certain persons may receive from the Public Employees Retirement System where that person is also receiving a pension
from another pension or retirement system administered by the
Consolidated Public Retirement Board; authorizing annual physician
review and requiring an annual statement of earnings from certain
persons receiving disability retirement payments; providing for
suspension of benefits upon failure of disability retiree to
furnish certain information; providing that interest is to be
included in the calculation of terminal benefits payable as the
result of death of retired participants; addressing the correction
of employer errors; clarifying use of members' unused, accrued
leave in final average salary; making technical corrections to the
Public Employees Retirement System; amending the definitions of
less than honorable service and retirement plan; increasing the
time to issue notice to terminate benefits; requiring prosecuting
attorneys to notify retirement board of any convictions or pleas to
less than honorable service; declaring policy and making
legislative findings regarding pension liability redemption;
setting forth definitions; providing for issuance of bonds; method
of bond issuance and sale of bonds; use of bond proceeds;
continuation of Pension Liability Redemption Fund and disbursements
therefrom; setting forth state pledges and covenants; operation of
article; relating to the Deputy Sheriff Retirement System;
concurrent contributions by members and employers; credit for nondeputy sheriff service in the Public Employees Retirement System
prior to transfer; treatment of withdrawals not repaid prior to
transfer; providing that any person becoming a member of the Deputy
Sheriff Retirement System after the first day of July, two thousand
five, may not borrow from that plan; relating to the West Virginia
State Police Death, Disability and Retirement Fund generally;
adding general definitions to the West Virginia State Police Death,
Disability and Retirement Fund; adding definitions of "law-
enforcement officer", "partially disabled", "totally disabled" and
"physical or mental impairment" to the West Virginia State Police
Death, Disability and Retirement Fund; making technical changes in
to the West Virginia State Police Death, Disability and Retirement
Fund; providing for probable permanent disability status;
specifying that total disability now is inability to perform any
substantial gainful employment and that partial disability is
inability to perform law-enforcement duties; specifying limitation
on compensation rendered to health care providers; providing that
member receiving annuity for partial disability incurred in
performance of duty may be employed as an elected sheriff or
appointed chief of police if it is shown to the Board that such
employment is not inconsistent with the partial disability;
allowing application for disability to be made by person acting on
member's behalf; allowing Superintendent to petition Board for member's disability when he or she deems the member disabled;
authorizing rules; judicial review; allowing Board to withhold
payment pending judicial review; requiring disability recipient to
file annual statement of earnings and setting forth penalty for
refusal or failure to do so; annual report of employer's disability
retirement experience in to the West Virginia State Police Death,
Disability and Retirement Fund; limitation on benefit increases;
relating to amending definitions in the West Virginia State Police
Retirement System; determination of contributions; acquiring
retirement credited service through member's use of accrued annual
or sick leave days in the West Virginia State Police Retirement
System; establishing starting date for payment of annuity in the
West Virginia State Police Retirement System; clarifying disability
provisions and technical corrections in the West Virginia State
Police Retirement System; annual report of employer's disability
retirement experience in to the West Virginia State Police
Retirement System; limitation on benefit increases; amending
provisions relating to the State Teachers Retirement System;
amending, adding and alphabetizing the definitions; providing for
the use of qualified military service in the State Teachers
Retirement System; providing that in the case of deceased retired
participants that interest is to be included in the calculation of
terminal benefits payable and making other technical modifications in the State Teachers Retirement System; clarifying provisions for
loan repayment in the State Teachers Retirement System; replacing
earnable compensation with gross salary in the State Teachers
Retirement System; clarifying maximum loan amount and making
technical corrections in the State Teachers Retirement System;
making technical corrections to the Teachers Retirement System;
creating the Teachers Employers Contribution Collection Account;
moneys to be deposited and transfer of moneys in account;
continuing the Teachers Retirement System Fund; moneys to be
deposited and use of moneys in fund; discontinuing the loan program
participation of teachers and nonteachers who become members of the
Teachers Retirement System on or after the first day of July, two
thousand five; limitation on benefits; creating Employee Pension
and Health Care Benefits Fund; moneys to be deposited; use of
moneys in fund; amending certain definitions in the Teachers
Defined Contribution System; clarifying participation requirement
in the Teachers Defined Contribution System; providing employer
deadlines for deposit of contributions in the Teachers Defined
Contribution System; establishing when payments are to be made into
and out of the suspension account in the Teachers Defined
Contribution System; adding the Internal Revenue Service provisions
concerning incidental death benefits in the Teachers Defined
Contribution System; clarifying that all years of employee service will be counted for vesting purposes in the Teachers Defined
Contribution System; prohibiting involuntary cash-outs effective
the thirtieth day of June, two thousand five; making technical
corrections in the Teachers Defined Contribution System; requiring
River Valley Child Development Services to offer pension plan for
employees; allowing employees to withdraw from PERS; requiring
notice; relating to the merger and consolidation of the Teachers
Defined Contribution Retirement System and the State Teachers
Retirement System generally; closing the Teachers Defined
Contribution Retirement System to newly hired personnel; providing
legislative findings and purpose; providing definitions; providing
for merger and consolidation of the Teachers Defined Contribution
Retirement System and the State Teachers Retirement System upon
election; providing responsibilities of the Consolidated Public
Retirement Board; setting forth dates and time periods for
transition and election; requiring that increase of or new benefits
to the Teachers Retirement System be amortized over a ten-year time
period; providing for education about election and merger for
members; requiring legal notice to members; providing for transfer
of assets from the Teachers Defined Contribution Retirement System
to the State Teachers Retirement System upon favorable vote for
consolidation and merger; providing that the Teachers Defined
Contribution Retirement System shall not exist upon favorable vote for consolidation and merger; setting forth terms of merger and
consolidation of the Teachers Defined Contribution Retirement
System and the State Teachers Retirement System; providing for
service credit in the State Teachers Retirement; requiring members
of Teachers Defined Contribution Plan to pay additional amount to
receive credit upon merger; providing options and loans for members
moving to the remaining plan; providing service credit for
transferring member; addressing withdrawals and cash outs;
providing for election on the question of merger and consolidation
of the Teachers Defined Contribution Retirement System and the
State Teachers Retirement System; setting forth requirements of
election; allowing Consolidated Public Retirement Board to contract
directly for professional services for purposes of performing its
responsibilities related to the merger and consolidation and
conducting the election; permitting only one election; addressing
qualified domestic relations orders; providing for vesting of
members and minimum guarantees of benefits for them; providing for
due process and right to appeal; providing for nonseverability of
the new article; and limitation on benefit increases in Judges'
Retirement System.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks,
White, Yoder and Tomblin (Mr. President)--30.
The nays were: Harrison, Lanham, Minear and Oliverio--4.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2984) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:30 p.m. today:
Eng. Senate Bill No. 604, Establishing method for projecting
increase in net enrollment for each school district.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments to, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Senate Bill No. 583, Relating to appealing orders from
family court to circuit court.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Webster, Hrutkay and Howard.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Dempsey, White and Caruth.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2852, Implementing the
recommendations of the West Virginia Pharmaceutical Cost Council.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate.
On motion of Senator Chafin, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having been reconsidered,
At the request of Senator Prezioso, unanimous consent was
granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Prezioso, the following
amendment to the bill was reported by the Clerk and adopted:
On pages four and five, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That §5-16-7b of the Code of West Virginia, 1931, as amended,
be repealed; that §5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5,
§5-16C-6, §5-16C-7, §5-16C-8, §5-16C-9 and §5-16C-10 of said code
be repealed; that §5A-3-1a of said code be repealed; that §5A-3C-1,
§5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7,
§5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13,
§5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code be
amended and reenacted; that said code be amended by adding thereto
ten new sections, designated §5A-3C-18, §5A-3C-19, §5A-3C-20, §5A-
3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24, §5A-3C-25, §5A-3C-26 and
§5A-3C-27; that §5F-2-2 of said code be amended and reenacted; and
that §29-22-18a of said code be amended and reenacted, all to read
as follows:.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2852), as just amended, was read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2852) passed.
On motion of Senator Prezioso, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one through four, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2852--A Bill to repeal
§5-16-7b of the Code of West Virginia, 1931, as amended; to repeal
§5-16C-1, §5-16C-2, §5-16C-3, §5-16C-4, §5-16C-5, §5-16C-6,
§5-16C-7, §5-16C-8, §5-16C-9 and §5-16C-10 of said code; to repeal
§5A-3-1a of said code; to amend and reenact §5A-3C-1, §5A-3C-2,
§5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8,
§5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14,
§5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code; to amend said code by adding thereto ten new sections, designated §5A-3C-18,
§5A-3C-19, §5A-3C-20, §5A-3C-21, §5A-3C-22, §5A-3C-23, §5A-3C-24,
§5A-3C-25, §5A-3C-26 and §5A-3C-27; to amend and reenact §5F-2-2 of
said code; and to amend and reenact §29-22-18a of said code, all
relating generally to the creation of the Office of the
Pharmaceutical Advocate and the transfer of most of the powers and
responsibilities of the Pharmaceutical Cost Management Council to
the Pharmaceutical Advocate; legislative findings; defining terms;
powers and duties of the Office of the Pharmaceutical Advocate;
creation of the cabinet-level position of the Pharmaceutical
Advocate; qualifications and salary of the Pharmaceutical Advocate;
powers and duties of the Pharmaceutical Advocate; creation of the
Pharmaceutical Advisory Council; qualifications of Council members;
powers and duties of the Council; reporting requirements of the
Council, the Pharmaceutical Advocate and the Office of the
Pharmaceutical Advocate; transferring powers and duties of the West
Virginia Public Employees Insurance Act to negotiate for and
purchase pharmaceuticals to the Pharmaceutical Advocate; transfer
of the powers and duties to negotiate and execute prescription drug
purchasing agreements to the Pharmaceutical Advocate; transfer of
the powers and duties to negotiate and execute pharmacy benefit
management contracts to the Pharmaceutical Advocate; establishing
the Federal Supply Schedule as a benchmark for the purchase of Brand name pharmaceutical drugs; exempting the Pharmaceutical
Advocate from state purchasing requirements; authority to
investigate the feasibility of purchasing Canadian drugs; authority
to investigate multistate discussion groups and agreements;
elimination of the transfer of the Clearinghouse Program to the
state; elimination of the transfer of the pharmaceutical discount
program to the state; authorizing the Pharmaceutical Advocate to
take advantage of Act of Congress, accept gifts, grants and
matching funds; continuing agency management ability until the
Office of the Pharmaceutical Advocate is operational; prohibiting
restraint of trade and conforming the standards for same with other
provisions of the code; providing civil and criminal penalties for
restraint of trade; reporting of advertising costs to the
Pharmaceutical Advocate; state role and responsibilities;
participation by all state agencies who are payors for prescription
drugs; authority for the Pharmaceutical Advocate to investigate
participation in a preferred drug list by private individuals,
commercial insurance carriers and self-insured companies; rule-
making authority; identifying potential use of savings; sunset
provisions; severability provision; transfer of the powers and
duties of the West Virginia Pharmaceutical Cost Management Council
to the Office of the Pharmaceutical Advocate; providing authority
for the secretary of each department to cooperate with the Office of the Pharmaceutical Advocate in the purchase of prescription
drugs; and eliminating requirement that the Governor focus
resources on creation of a prescription drug program from the state
Lottery Act.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2852) 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 again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2991, Providing criminal
penalties for aiding escape and specifying items that are unlawful
to deliver to or be possessed by individuals in custody or
confinement.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2991) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3002, Removing the thirty day deadline for
submitting party designations to be eligible to vote in the primary
election.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3002) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3002--A Bill to amend and reenact §3-2-6
and §3-2-31 of the Code of West Virginia, 1931, as amended, all
relating to registration of voters generally; providing that a
voter may register up to the twenty-first day before an election;
and conforming the requirement that a voter designate a political
party before the primary no later than the close of voter
registration before the primary.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3010, Providing that the
Commissioner of Corrections may authorize wardens or administrators to establish imprest funds for transporting inmates.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3010) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3014, Clarifying that mandated accident
and sickness insurance benefits do not apply to limited coverage
policies, unless expressly made applicable to such policies.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3014) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3016, Excepting the making of appointments
by secretaries of licensed real estate brokers and salespersons
with buyers and sellers of real estate from the scope of practice
of real estate brokerage subject to licensing.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3016) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3023, Raising revenues by
assessments and collections on all breeding age sheep and goats to
fund the state's participation in a federal coyote control program.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham,
Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Harrison and Weeks--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3023) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3045, Relating to the creation and
modification of public service districts.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3045) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3048, Relating to
restructuring of the hunting and fishing license system.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3048) passed.
The following amendment to the title of the bill, from the
Committee on Natural Resources, was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3048--A Bill to repeal
§20-2-39, §20-2-40, §20-2-40b, §20-2-41, §20-2-43, §20-2-44a,
§20-2-45, §20-2-46b, §20-2-46c, §20-2-46d, §20-2-46f, §20-2-46g,
§20-2-46i, §20-2-46j, §20-2-46k, §20-2-46l, §20-2-46m and §20-2-63
of the Code of West Virginia, 1931, as amended; to amend and
reenact §20-2-30a, §20-2-33, §20-2-44 and §20-2-44b of said code;
to amend said code by adding thereto twenty-four new sections, designated §20-2-33b, §20-2-42, §20-2-42a, §20-2-42b, §20-2-42c,
§20-2-42d, §20-2-42e, §20-2-42f, §20-2-42g, §20-2-42h, §20-2-42i,
§20-2-42j, §20-2-42k, §20-2-42l, §20-2-42m, §20-2-42n, §20-2-42o,
§20-2-42p, §20-2-42q, §20-2-42r, §20-2-42s, §20-2-42t, §20-2-42u
and §20-2-42v; and to amend and reenact §20-2B-6, §20-2B-7,
§20-2B-8, §20-2B-9 and §20-2B-10 of said code, all relating to the
restructuring of the hunting and fishing license system; increasing
fees; providing an effective date; creating a system to index fees
to the Consumer Price Index; and providing for requirements for
certification of training.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 5:50 p.m. today:
Eng. Senate Bill No. 583, Relating to appealing orders from
family court to circuit court.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 3049, Creating a new crime
of wanton endangerment involving the use of fire and imposing a
criminal penalty for such crime.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3049) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3068, Authorizing private
inspectors to conduct annual inspections of elevators in
state-owned buildings while establishing authority for the Division
of Labor to conduct over-site inspections.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3068) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3089, Adding a
representative to the trucking advisory committee and adding routes
to the coal resource transportation road system in Braxton and
Webster counties.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3089) passed.
At the request of Senator Unger, as chair of the Committee on
Transportation and Infrastructure, and by unanimous consent, the
unreported Transportation and Infrastructure committee amendment to
the title of the bill was withdrawn.
On motion of Senator Unger, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3089--A Bill to amend and
reenact §17C-17A-3 and §17C-17A-12 of the Code of West Virginia,
1931, as amended; and to amend and reenact §24A-1A-2 of said code,
all relating to the regulation of the commercial transportation of
coal; adding representatives to the Commercial Motor Vehicle Weight
and Safety Enforcement Advisory Committee; authorizing the Division
to provide for special crossing permits by legislative rule;
creating the Coal Resource Transportation Designation Committee and
authorizing it to make recommendations to the Joint Committee on
Government and Finance and to designate roads to the coal resource transportation road system under certain circumstances; and adding
routes to the coal resource transportation road system in Braxton,
Webster, Nicholas and Ohio counties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3094, Relating to child support and
enforcement.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3094) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 3094--A Bill to repeal §48-14-419 of the
code of West Virginia, 1931, as amended; to repeal §48-16-308 of
said code; to repeal §48-18-109 and §48-18-127 of said code; to
amend and reenact §48-17-101 of said code; to amend and reenact
§48-18-103, §48-18-108, §48-18-112, §48-18-113, §48-18-117, §48-18-
118, §48-18-119 and §48-18-121 of said code; and to amend and
reenact §48-19-102 said code, all relating to child support
enforcement; repealing authority of the West Virginia Support
Enforcement Commission to promulgate rules; repealing certain
duties of the commission; repealing authority of Bureau for Child
Support Enforcement to contract for certain services; repealing
authority of commission to adopt form to identify support payments;
increasing the number of members on the Commission; altering the
organization of certain Bureau employees; removing Commission
authority to promulgate fee rules; authorizing the Commissioner of
the Bureau for Child Support Enforcement to cooperate with other
states in the enforcement of child support; moving certain
rulemaking authority from the Commission to the Commissioner;
removing Commission authority to require certain bonding
requirements of Bureau employees; moving authority from Commission
to the Commissioner relating to collecting child support from state
and federal taxes; revising requirements relating to withholding child support payments from the Bureau of Employment Programs; and
removing geographic delineations for certain Bureau attorneys.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator McKenzie, unanimous consent being
granted, Senator McKenzie addressed the Senate regarding Engrossed
Committee Substitute for Committee Substitute for Senate Bill No.
442 (Relating generally to authorizing table games at licensed
horse and dog racetracks).
Senator Bowman requested unanimous consent that the remarks by
Senator McKenzie be ordered printed in the Appendix to the Journal.
Which consent was not granted, Senator Chafin objecting.
On motion of Senator Kessler, the remarks by Senator McKenzie
were ordered printed in the Appendix to the Journal.
Pending announcement of a meeting of the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 8 p.m.
tonight.
Night Session
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, unanimous consent being granted,
returned to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted
the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated March 24, 2005,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1.For Member, Real Estate Appraiser Licensing and
Certification Board, Linda York, Fairmont, Marion County, for the
term ending June 30, 2006.
2.For Member, Housing Development Fund, Everette E.
Sullivan, Dunbar, Kanawha County, for the term ending October 30,
2008.
3.For Secretary, Department of Commerce, L. Thomas Bulla,
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
4.For Member, New River Community and Technical College
Board of Governors, Leslie Baker, Beckley, Raleigh County, for the
term ending June 30, 2005.
5.For Member, New River Community and Technical College
Board of Governors, William Blake, Lewisburg, Greenbrier County,
for the term ending June 30, 2005.
6.For Member, New River Community and Technical College
Board of Governors, Kay Carpenter, Webster Springs, Webster County,
for the term ending June 30, 2006.
7.For Member, New River Community and Technical College
Board of Governors, Robert Farley, Princeton, Mercer County, for
the term ending June 30, 2006.
8.For Member, New River Community and Technical College
Board of Governors, Edward Knight, Lewisburg, Greenbrier County,
for the term ending June 30, 2007.
9.For Member, New River Community and Technical College
Board of Governors, Marilyn Leftwich, White Sulphur Springs,
Greenbrier County, for the term ending June 30, 2007.
10.For Member, New River Community and Technical College
Board of Governors, David Nalker, Lewisburg, Greenbrier County, for
the term ending June 30, 2008.
11.For Member, New River Community and Technical College
Board of Governors, Vickie Nutter, Craigsville, Nicholas County,
for the term ending June 30, 2008.
12.For Member, New River Community and Technical College
Board of Governors, William Sherwood, Princeton, Mercer County, for
the term ending June 30, 2008.
13.For Member, Community and Technical College of Shepherd
Board of Governors, Dave Blythe, Martinsburg, Berkeley County, for
the term ending June 30, 2005.
14.For Member, Community and Technical College of Shepherd
Board of Governors, Bill Clark, Berkeley Springs, Morgan County, for the term ending June 30, 2005.
15.For Member, Community and Technical College of Shepherd
Board of Governors, The Honorable Vicki Douglas, Martinsburg,
Berkeley County, for the term ending June 30, 2006.
16.For Member, Community and Technical College of Shepherd
Board of Governors, Bob Kutcher, Kearneysville, Jefferson County,
for the term ending June 30, 2006.
17.For Member, Community and Technical College of Shepherd
Board of Governors, Taylor Perry, Martinsburg, Berkeley County, for
the term ending June 30, 2007.
18.For Member, Community and Technical College of Shepherd
Board of Governors, Maria Lorensen, Martinsburg, Berkeley County,
for the term ending June 30, 2007.
19.For Member, Community and Technical College of Shepherd
Board of Governors, Jane Peters, Charles Town, Jefferson County,
for the term ending June 30, 2008.
20.For Member, Community and Technical College of Shepherd
Board of Governors, Jim Rodgers, Martinsburg, Berkeley County, for
the term ending June 30, 2008.
21.For Member, Community and Technical College of Shepherd
Board of Governors, Shirley Tolbert, Charles Town, Jefferson
County, for the term ending June 30, 2008.
22.For Member, Forest Management Review Commission, The Honorable James Willison, Sistersville, Tyler County, for the term
ending March 14, 2009.
23.For Member, Board of Control for Southern Regional
Education Board, The Honorable Roman W. Prezioso, Jr., Fairmont,
Marion County, for the term ending June 30, 2008.
24.For Member, Board of Control for Southern Regional
Education Board, The Honorable Robert H. Plymale, Ceredo, Wayne
County, for the term ending June 30, 2006.
25.For Member, Board of Control for Southern Regional
Education Board, The Honorable Thomas Campbell, Lewisburg,
Greenbrier County, for the term ending June 30, 2005.
26.For Member, Board of Control for Southern Regional
Education Board, Jay Cole, Charleston, Kanawha County, for the term
ending June 30, 2008.
27.For Member, Motor Vehicle Dealers Advisory Board, Kelly
Smith, Charleston, Kanawha County, for the term ending June 30,
2007.
28.For Member, Motor Vehicle Dealers Advisory Board, Patrick
Allen, Pennsboro, Ritchie County, for the term ending June 30,
2006.
29.For Member, Motor Vehicle Dealers Advisory Board, James
Williams, Martinsburg, Berkeley County, for the term ending June
30, 2005.
30.For Member, Motor Vehicle Dealers Advisory Board, Polly
Diller, Charleston, Kanawha County, for the term ending June 30,
2007.
31.For Member, Council for Community and Economic
Development, Michael J. Basile, Hurricane, Putnam County, for the
term ending June 30, 2008.
32.For Member, Pharmaceutical Cost Management Council, Leah
Summers, Cannonsburg, Pennsylvania, for the term ending June 30,
2008.
33.For Member, Regional Jail and Correctional Facility
Authority, Garry E. Wheeler, Hinton, Summers County, for the term
ending June 30, 2008.
34.For Member, Oil and Gas Conservation Commission, Robert
L. Radabaugh, Sand Fork, Gilmer County, for the term ending July
27, 2010.
35.For Member, Oil and Gas Conservation Commission, Barry
Lay, Glenville, Gilmer County, for the term ending July 27, 2008.
36.For Member, Oil and Gas Conservation Commission, Anthony
Gum, Buckhannon, Upshur County, for the term ending July 27, 2006.
37.For Member, Eastern West Virginia Community and Technical
College Board of Governors, The Honorable Phyllis M. Cole,
Petersburg, Grant County, for the term ending June 30, 2008.
Senate Executive Message No. 3, dated April 4, 2005, requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 3
is submitted:
1.For Member, Center for Nursing Board of Directors, Janice
Maynard, Delbarton, Mingo County, for the term ending June 30,
2008.
2.For Member, Center for Nursing Board of Directors,
Cynthia Persily, Charleston, Kanawha County, for the term ending
June 30, 2008.
3.For Member, Center for Nursing Board of Directors, Pamela
Alderman, Chapmanville, Logan County, for the term ending June 30,
2006.
4.For Member, Center for Nursing Board of Directors, Duane
Napier, Huntington, Cabell County, for the term ending June 30,
2006.
5.For Member, Center for Nursing Board of Directors, Shelia
Kyle, Huntington, Cabell County, for the term ending June 30, 2008.
6.For Member, Center for Nursing Board of Directors, Denise
Campbell, Elkins, Randolph County, for the term ending June 30,
2006.
7.For Member, Center for Nursing Board of Directors, Dottie
Oakes, Morgantown, Monongalia County, for the term ending June 30,
2006.
8.For Member, Center for Nursing Board of Directors, Mary
Beth Barr, Petersburg, Grant County, for the term ending June 30,
2008.
9.For Member, Center for Nursing Board of Directors,
Eugenia Basham, Cool Ridge, Raleigh County, for the term ending
June 30, 2006.
10.For Member, Center for Nursing Board of Directors, Amy
Campbell, Charleston, Kanawha County, for the term ending June 30,
2008.
11.For Member, Center for Nursing Board of Directors, Teresa
Witt, Farmington, Marion County, for the term ending June 30, 2008.
12.For Member, Agricultural Land Protection Authority Board
of Trustees, Gary Foster, Fairmont, Marion County, for the term
ending June 30, 2008.
13.For Member, Agricultural Land Protection Authority Board
of Trustees, Bob Baird, Gallipolis Ferry, Mason County, for the
term ending June 30, 2006.
14.For Member, Agricultural Land Protection Authority Board
of Trustees, Rod Graves, Sinks Grove, Monroe County, for the term
ending June 30, 2005.
15.For Member, Agricultural Land Protection Authority Board
of Trustees, Mark Metheny, Morgantown, Monongalia County, for the
term ending June 30, 2006.
16.For Member, Agricultural Land Protection Authority Board
of Trustees, Tim Cottrill, Point Pleasant, Mason County, for the
term ending June 30, 2005.
17.For Member, Education Commission of the States, Nancy
Sturm, Charleston, Kanawha County, to serve at the will and
pleasure of the Governor.
18.For Member, Education Commission of the States, Jay Cole,
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
19.For Member, Education Commission of the States, Steve
Paine, Charleston, Kanawha County, to serve at the will and
pleasure of the Governor.
21.For Member, Board of Directors of the Clay Center for the
Arts and Sciences, Joyce Allen, Coalton, Randolph County, for the
term ending June 30, 2005.
22.For Member, Board of Directors of the Clay Center for the
Arts and Sciences, Diane Dailey, Martinsburg, Berkeley County, for
the term ending June 30, 2007.
23.For Member, Board of Directors of the Clay Center for the
Arts and Sciences, Bob Shell, Barboursville, Cabell County, for the
term ending June 30, 2007.
24.For Member, Contractor Licensing Board, Gene Thompson,
Nitro, Kanawha County, for the term ending June 30, 2008.
25.For Member, Contractor Licensing Board, Kenneth Tubbs,
Frankford, Greenbrier County, for the term ending June 30, 2008.
26.For Member, Contractor Licensing Board, Randy Ferguson,
Huntington, Cabell County, for the term ending June 30, 2008.
And,
Senate Executive Message No. 5, dated April 8, 2005,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 5
is submitted:
1.For Member, Natural Resources Commission, Jeffrey S.
Bowers, Sugar Grove, Pendleton County, for the term ending June 30,
2005.
2.For Member, Natural Resources Commission, Jan E. Riffe,
Alderson, Greenbrier County, for the term ending June 30, 2008.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Shirley Love,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:
Senate Executive Message No. 3-W, dated January 12, 2005
(shown in the Senate Journal of that day, pages 44 and 45);
Senate Executive Message No. 2, dated March 24, 2005 (shown in
the Senate Journal of that day, pages 38 to 41, inclusive);
Senate Executive Message No. 3, dated April 4, 2005 (shown in
the Senate Journal of April 6, 2005, pages 65 to 68, inclusive);
And,
Senate Executive Message No. 5, dated April 8, 2005 (shown in
the Senate Journal of that day, pages 51 and 52).
Senator Love then moved that the Senate advise and consent to
the nomination of The Honorable Robert H. Plymale to the Board of
Control for Southern Regional Education Board (being nomination
number 24 in Executive Message No. 2).
Prior to the call of the roll, Senator Plymale moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso,
Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: None.
Excused from voting: Plymale--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion had prevailed and the nomination of The Honorable Robert H.
Plymale to the Board of Control for Southern Regional Education
Board had been confirmed.
Senator Love then moved that the Senate advise and consent to
the nomination of The Honorable Roman W. Prezioso, Jr., to the
Board of Control for Southern Regional Education Board (being
nomination number 23 in Executive Message No. 2).
Prior to the call of the roll, Senator Prezioso moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: None.
Excused from voting: Prezioso--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion had prevailed and the nomination of The Honorable Roman W.
Prezioso, Jr., to the Board of Control for Southern Regional
Education Board had been confirmed.
Senator Love then moved that the Senate advise and consent to
all of the executive nominations referred to in the foregoing
report from the Committee on Confirmations, except Nomination Nos.
23 and 24, Executive Message No. 2, The Honorable Roman W.
Prezioso, Jr., and The Honorable Robert H. Plymale for Members,
Board of Control for Southern Regional Education Board, which were
previously confirmed.
The roll was then taken; and
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion had prevailed.
__________
Consideration of executive nominations having been concluded,
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had returned to the
Senate calendar, on third reading, Engrossed House Bill No. 2780.
Senator Chafin also announced that in the same meeting, the
Committee on Rules, in accordance with rule number seventeen of the
Rules of the Senate, had placed consideration of Engrossed
Committee Substitute for House Bill No. 3208, Engrossed House Bill
No. 3236 and Engrossed House Bill No. 2780 preceding consideration
of all other bills on today's third reading calendar.
The Senate again proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 3208, Adjusting the formula
by which the Public Service Commission distributes wireless
enhanced 911 fee revenues to the counties.
On third reading, coming up out of regular order, with
unreported Finance committee amendments to the bill pending, and
with the right having been granted on Thursday, April 7, 2005, for
further amendments to be received on third reading, was reported by
the Clerk.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the bill was withdrawn.
On motion of Senator McCabe, the following amendment to the
bill was reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-6b. Wireless enhanced 911 fee.
(a) Beginning on the first day of January, one thousand nine
hundred ninety-eight, all CMRS providers, as defined in section two
of this article, shall, on a monthly basis, collect from each of
their in-state two-way service subscribers a wireless enhanced 911
fee. No later than the first day of August, one thousand nine
hundred ninety-eight, the Public Service Commission shall, after
the receipt of comments and the consideration of evidence presented
at a hearing, issue an order which directs the CMRS providers
regarding all relevant details of wireless enhanced 911 fee collection, including the determination of who is considered an in-
state two-way service subscriber and which shall specify how the
CMRS providers shall deal with fee collection shortfalls caused by
uncollectible accounts. The Public Service Commission shall
solicit the views of the wireless telecommunications utilities
prior to issuing the order.
(b) The wireless enhanced 911 fee is seventy-five cents three
dollars per month for each valid retail commercial mobile radio
service subscription, as that term is defined by the Public Service
Commission in its order issued under subsection (a) of this
section: Provided, That beginning on the first day of July, two
thousand five, the wireless enhanced 911 fee shall include ten
cents to be distributed to the West Virginia State Police to be
used for equipment upgrades for improving and integrating their
communication efforts with those of the enhanced 911 systems:
Provided, however, That for the fiscal year beginning on the first
day of July, two thousand five, and for every fiscal year
thereafter, one million dollars of the wireless enhanced 911 fee
shall be distributed by the Public Service Commission to subsidize
the construction of towers. The moneys shall be deposited in a
fund administered by the West Virginia Public Service Commission,
entitled "Enhanced 911 Wireless Tower Access Assistance Fund", and
shall be expended in accordance with an enhanced 911 wireless tower access matching grant order adopted by the Public Service
Commission. The Commission order shall contain terms and
conditions designed to provide financial assistance loans or grants
to state agencies, political subdivisions of the state and wireless
telephone carriers for the acquisition, equipping and construction
of new wireless towers, which would provide enhanced 911 service
coverage and which would not be available otherwise due to marginal
financial viability of the applicable tower coverage area:
Provided further, That the grants shall be allocated among
potential sites based on application from county commissions
demonstrating the need for enhanced 911 wireless coverage in
specific areas of this state. Any tower constructed with
assistance from the fund created by this subdivision shall be
available for use by emergency services, fire departments and law-
enforcement agencies communication equipment, so long as that use
does not interfere with the carrier's wireless signal: And
provided further, That the Public Service Commission shall
promulgate rules in accordance with article three, chapter twenty-
nine-a of this code to effectuate the provisions of this
subsection. The Public Service Commission is specifically
authorized to promulgate emergency rules.
(c) Beginning in the year one thousand nine hundred ninety-
seven, and every two years thereafter, the Public Service Commission shall conduct an audit of the wireless enhanced 911 fee
and shall recalculate the fee so that it is the weighted average
rounded to the nearest penny, as of the first day of March of the
respecification year, of all of the enhanced 911 fees imposed by
the counties which have adopted an enhanced 911 ordinance:
Provided, That the wireless enhanced 911 fee may never be increased
by more than twenty-five percent of its value at the beginning of
the respecification year: Provided, however, That the fee may never
be less than the amount set in subsection (b) of this section:
Provided further, That beginning on the first day of July, two
thousand five, the wireless enhanced 911 fee shall include ten
cents to be distributed to the West Virginia State Police to be
used for equipment upgrades for improving and integrating their
communication efforts with those of the enhanced 911 systems: And
provided further, That beginning on the first day of July, two
thousand five, one million dollars of the wireless enhanced 911 fee
shall be distributed by the Public Service Commission to subsidize
the construction of wireless towers as specified in subsection (b)
of this section.
(d) The CMRS providers shall, after retaining a three-percent
billing fee, send the wireless enhanced 911 fee moneys collected,
on a monthly basis, to the Public Service Commission. The Public
Service Commission shall, on a quarterly and approximately evenly staggered basis, disburse the fee revenue in the following manner:
(1) Each county that does not have a 911 ordinance in effect
as of the original effective date of this section in the year one
thousand nine hundred ninety-seven or has enacted a 911 ordinance
within the five years prior to the original effective date of this
section in the year one thousand nine hundred ninety-seven shall
receive eight and one-half tenths of one percent of the fee
revenues received by the Public Service Commission: and from the
remainder of the revenues, each Provided, That after the effective
date of this section, in the year two thousand five, when two or
more counties consolidate into one county to provide government
services, the consolidated county shall receive one percent of the
fee revenues received by the Public Service Commission for itself
and for each county merged into the consolidated county. Each
county shall receive a pro rata portion eight and one half tenths
of one percent of the fee revenues remainder of the fee revenues
received by the Public Service Commission: based on that county's
percentage of the total number of local exchange telephone access
lines and line equivalents in service in the state Provided, That
after the effective date of this section, in the year two thousand
five, when two or more counties consolidate into one county to
provide government services, the consolidated county shall receive
one percent of the fee revenues received by the Public Service Commission for itself and for each county merged into the
consolidated county. Then, from any moneys remaining, each county
shall receive a pro rata portion of that remainder based on that
county's population as determined in the most recent decennial
census as a percentage of the state total population. The Public
Service Commission shall recalculate the county disbursement
percentages on a yearly basis, with the changes effective on the
first day of July, and using data as of the preceding first day of
March. The public utilities which normally provide local exchange
telecommunications service by means of lines, wires, cables,
optical fibers or by other means extended to subscriber premises
shall supply the data to the Public Service Commission on a county-
specific basis no later than the first day of June of each year;
(2) Counties which have an enhanced 911 ordinance in effect
shall receive their share of the wireless enhanced 911 fee revenue
for use in the same manner as the enhanced 911 fee revenues
received by those counties pursuant to their enhanced 911
ordinances;
(3) The Public Service Commission shall deposit the wireless
enhanced 911 fee revenue for each county which does not have an
enhanced 911 ordinance in effect into an escrow account which it
has established for that county. Any county with an escrow account
may, immediately upon adopting an enhanced 911 ordinance, receive the moneys which have accumulated in the escrow account for use as
specified in subdivision (2) of this subsection: Provided, That a
county that adopts a 911 ordinance after the original effective
date of this section in the year one thousand nine hundred ninety-
seven or has adopted a 911 ordinance within five years of the
original effective date of this section in the year one thousand
nine hundred ninety-seven shall continue to receive one percent of
the total 911 fee revenue for a period of five years following the
adoption of the ordinance. and Thereafter, each county shall
receive that county's portion eight and one half tenths of one
percent of the remaining fee revenue, being disbursed to counties
on a pro rata basis plus that county's additional pro rata portion
of the fee revenues then remaining, based on that county's
population as determined in the most recent decennial census as a
percentage of the state total population: Provided, however, That
every five years from the year one thousand nine hundred ninety-
seven, all fee revenue residing in escrow accounts shall be
disbursed on the pro rata basis specified in subdivision (1) of
this subsection, except that data for counties without enhanced 911
ordinances in effect shall be omitted from the calculation and all
escrow accounts shall begin again with a zero balance.
(e) CMRS providers have the same rights and responsibilities
as other telephone service suppliers in dealing with the failure by a subscriber of a CMRS provider to timely pay the wireless enhanced
911 fee.
(f) Notwithstanding the provisions of section one-a of this
article, for the purposes of this section, the term "county" means
one of the counties provided for in section one, article one,
chapter one of this code.
(g) From any funds distributed to a county pursuant to this
section, a total of three percent quarter shall be set aside in a
special fund to be used exclusively for the purchase of equipment
that will provide information regarding the x and y coordinates of
persons who call an emergency telephone system through a commercial
mobile radio service: Provided, That upon purchase of the necessary
equipment, the special fund shall be dissolved and any surplus
shall be used for general operation of the emergency telephone
system as may otherwise be provided by law.
Following discussion,
The question being on the adoption of Senator McCabe's
amendment to the bill (Eng. Com. Sub. for H. B. No. 3208), the same
was put and prevailed.
Having been engrossed, the bill, as just amended, was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Kessler, Lanham, Love, McCabe, Minard,
Minear, Sharpe, White and Tomblin (Mr. President)--22.
The nays were: Deem, Foster, Harrison, Jenkins, McKenzie,
Oliverio, Plymale, Prezioso, Sprouse, Unger, Weeks and Yoder--12.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3208) passed.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the title of the bill was withdrawn.
On motion of Senator McCabe, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3208--A Bill to amend and
reenact §24-6-6b of the Code of West Virginia, 1931, as amended,
relating to the wireless enhanced 911 fee; raising the fee;
earmarking ten cents of the fee for the State Police; earmarking
one million dollars of the fee for the construction of wireless
towers; creating the Enhanced 911 Wireless Tower Access Assistance
Fund to be administered by the Public Service Commission;
authorizing the Commission to provide loans and matching grants; use of towers for emergency services; authorizing the Commission to
promulgate rules and emergency rules; adjusting the formula by
which the Public Service Commission distributes wireless enhanced
911 fees to the counties; and allowing counties which consolidate
government services to receive one percent of fee for each county
consolidated.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3236, Relating to the special reclamation
tax and special tax on coal production, providing that both of
these taxes apply to thin seam coal and providing that the special
reclamation tax subject to the West Virginia Tax Crimes and
Penalties Act and the West Virginia Tax Procedure and
Administration Act.
On third reading, coming up out of regular order, with an
unreported Finance committee amendment pending, and with the right
having been granted on yesterday, Friday, April 8, 2005, for
further amendments to be received on third reading, was reported by
the Clerk.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendment to the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the bill was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §22-3-11a and §22-3-
32a, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-11a. Special reclamation tax; clarification of imposition of
tax; procedures for collection and administration of
tax; application of Tax Procedure and Administration
Act and Tax Crimes and Penalties Act.
(a) It is the intent of the Legislature to clarify that, from
the date of its enactment, the special reclamation tax imposed
pursuant to the provisions of section eleven of this article is
intended to be in addition to any other taxes imposed on persons
conducting coal surface mining operations, including, but not
limited to, the tax imposed by section thirty-two of this article,
the tax imposed by article twelve-b, chapter eleven of this code,
the taxes imposed by article thirteen-a of said chapter and the tax
imposed by article thirteen-v of said chapter.
(b) Notwithstanding any other provisions of section eleven of
this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or thirteen-v, chapter eleven of this code be construed to be an
exemption from the tax imposed by section eleven of this article.
(c) When coal included in the measure of the tax imposed by
section eleven of this article is exempt from the tax imposed by
article twelve-b, chapter eleven of this code, the tax imposed by
section eleven of this article shall be paid to the tax
commissioner in accordance with the provisions of sections four
through fourteen, inclusive, article twelve-b, chapter eleven of
this code, which provisions are hereby incorporated by reference in
this article.
(d) General procedure and administration. -- Each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code applies
to the special tax imposed by section eleven of this article with
like effect as if such act were applicable only to the special tax
imposed by said section and were set forth in extenso in this
article, notwithstanding the provisions of section three, article
ten, chapter eleven of this code.
(e) Tax crimes and penalties. -- Each and every provision of
the "West Virginia Tax Crimes and Penalties Act" set forth in
article nine, chapter eleven of this code applies to the special
tax imposed by section eleven of this article with like effect as
if such act were applicable only to the special tax imposed by said section and set forth in extenso in this article, notwithstanding
the provisions of section two, article nine, chapter eleven of this
code.
§22-3-32a. Special tax on coal; clarification of imposition of
tax; procedures for collection and administration of
tax.
(a) It is the intent of the Legislature to clarify that from
the date of its enactment, the special tax on coal imposed pursuant
to the provisions of section thirty-two of this article is intended
to be in addition to any other taxes imposed on every person in
this state engaging in the privilege of severing, extracting,
reducing to possession or producing coal for sale profit or
commercial use, including, but not limited to, the tax imposed by
section eleven of this article, the tax imposed by article twelve-
b, chapter eleven of this code, the taxes imposed by article
thirteen-a of said chapter and the tax imposed by article thirteen-
v of said chapter.
(b) Notwithstanding any other provisions of section thirty-two
of this article to the contrary, under no circumstance shall an
exemption from the taxes imposed by article twelve-b, thirteen-a or
thirteen-v, chapter eleven of this code be construed to be an
exemption from the tax imposed by section thirty-two of this
article.
(c) When coal included in the measure of the tax imposed by
section thirty-two of this article is exempt from the tax imposed
by article twelve-b, chapter eleven of this code, the tax imposed
by section thirty-two of this article shall be paid to the tax
commissioner in accordance with the provisions of sections four
through fourteen, inclusive, article twelve-b, chapter eleven of
this code, which provisions are hereby incorporated by reference in
this article.
Having been engrossed, the bill, as just amended, was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3236) passed.
On motion of Senator Helmick, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3236--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto two new sections,
designated §22-3-11a and §22-3-32a, all relating generally to the
special reclamation tax and special tax on coal production;
clarifying that both of these taxes apply to production of thin
seam coal and providing for payment thereof; and providing that the
special reclamation is subject to the West Virginia Tax Crimes and
Penalties Act and the West Virginia Tax Procedure and
Administration Act.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: Weeks--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3236) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2780, Relating to increasing the
allocation of racetrack video lottery net terminal income to be
used for payment into the pension plan for employees of the
Licensed Racing Association.
On third reading, coming up out of regular order, with an
unreported Finance committee amendment pending, and with the right
having been granted on yesterday, Friday, April 8, 2005, for
further amendments to be received on third reading, was reported by
the Clerk.
Under rule number forty-three of the Rules of the Senate,
Senator Bowman was excused from voting on any matter pertaining to
the bill.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; Commission to provide
communications protocol data; distribution of net
terminal income; remittance through electronic
transfer of funds; establishment of accounts and nonpayment penalties; Commission control of
accounting for net terminal income; settlement of
accounts; manual reporting and payment may be
required; request for reports; examination of
accounts and records.
(a) The Commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol
documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
Commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be
remitted to the Commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the Commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the Commission. Licensed racetracks
must provide the Commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the Commission, the Commission shall
deduct an amount sufficient to reimburse the Commission for its
actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack, and the resulting amount after
the deduction is the net terminal income. The amount deducted for
administrative costs and expenses of the Commission may not exceed
four percent of gross terminal income: Provided, That any amounts
deducted by the Commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the
State Lottery Fund. For all fiscal years beginning on or after the
first day of July, two thousand one, the Commission shall not
receive an amount of gross terminal income in excess of the amount
of gross terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, but four percent of
any amount of gross terminal income received in excess of the
amount of gross terminal income received during the fiscal year
ending on the thirtieth day of June, two thousand one, shall be
deposited into the fund established in section eighteen-a, article
twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after the first
day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be divided as set out in section ten-b of this
article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses
required to be expended by the licensed racetrack in connection
with video lottery operations. The division shall be made as
follows:
(1) The Commission shall receive thirty percent of net
terminal income, which shall be paid into the State Lottery Fund as
provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee, and used
for payment of regular purses in addition to other amounts provided
for in article twenty-three, chapter nineteen of this code, on and
after the first day of July, two thousand five, the rate shall be
seven percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any amount in excess of the two
percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack is located that has
participated in the West Virginia Thoroughbred Development Fund
since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided
among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any amount in excess of the two
percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack other than a racetrack
described in paragraph (A) of this proviso is located and where the
racetrack has been located in a municipality within the county
since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other than a county
described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the Licensed Racing
Association by making a deposit into a special fund to be
established by the Racing Commission to be used for payment into
the pension plan for all employees of the Licensed Racing
Association;
(5) The West Virginia Thoroughbred Development Fund created
under section thirteen-b, article twenty-three, chapter nineteen of
this code and the West Virginia Greyhound Breeding Development Fund
created under section ten of said article shall receive an equal
share of a total of not less than one and one-half percent of the
net terminal income: Provided, That for any racetrack which does
not have a breeder's program supported by the Thoroughbred
Development Fund or the Greyhound Breeding Development Fund, the
one and one-half percent provided for in this subdivision shall be
deposited in the special fund established by the licensee and used
for payment of regular purses, in addition to other amounts
provided in subdivision (2) of this subsection and article twenty-
three, chapter nineteen of this code;
(6) The West Virginia Racing Commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-seven forty-six and one-half percent of net terminal income;
(8) (A) The Tourism Promotion Fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three,
the Tourism Commission shall transfer from the Tourism Promotion
Fund five million dollars of the three percent of the net terminal
income described in this section and section ten-b of this article
into the fund administered by the West Virginia Economic
Development Authority pursuant to section seven, article fifteen,
chapter thirty-one of this code, five million dollars into the
Capitol Renovation and Improvement Fund administered by the
Department of Administration pursuant to section six, article four,
chapter five-a of this code and five million dollars into the Tax
Reduction and Federal Funding Increased Compliance Fund; and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this three percent of
net terminal income and the three percent of net terminal income
described in paragraph (B), subdivision (8), subsection (a),
section ten-b of this article shall be distributed as provided in
this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income described in this section and in section ten-b of this article
shall be deposited into the Tourism Promotion Fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Development Office Promotion Fund
created under section three-b, article two, chapter five-b of this
code;
(iii) 0.5 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Research Challenge Fund created under
section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Capitol Renovation and Improvement Fund
administered by the Department of Administration pursuant to
section six, article four, chapter five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the 2004 Capitol Complex Parking Garage
Fund administered by the Department of Administration pursuant to
section five-a, article four, chapter five-a of this code;
(9) On and after the first day of July, two thousand five, seven percent of net terminal income shall be deposited into the
Workers' Compensation Debt Reduction Fund created in section five,
article two-d, chapter twenty-three of this code; and
(10) The remaining one percent of net terminal income shall be
deposited as follows:
(A) For the fiscal year beginning the first day of July, two
thousand three, the Veterans Memorial Program shall receive one
percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of
the state capitol complex in Charleston, West Virginia. The moneys
shall be deposited in the State Treasury in the Division of Culture
and History Special Fund created under section three, article
one-i, chapter twenty-nine of this code: Provided, That only after
sufficient moneys have been deposited in the Fund to complete the
veterans memorial and to pay in full the annual bonded indebtedness
on the veterans memorial, not more than twenty thousand dollars of
the one percent of net terminal income provided for in this
subdivision shall be deposited into a special revenue fund in the
State Treasury, to be known as the "John F. 'Jack' Bennett Fund".
The moneys in this fund shall be expended by the Division of
Veterans Affairs to provide for the placement of markers for the
graves of veterans in perpetual cemeteries in this state. The
Division of Veterans Affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a
of this code specifying the manner in which the funds are spent,
determine the ability of the surviving spouse to pay for the
placement of the marker and setting forth the standards to be used
to determine the priority in which the veterans grave markers will
be placed in the event that there are not sufficient funds to
complete the placement of veterans grave markers in any one year,
or at all. Upon payment in full of the bonded indebtedness on the
veterans memorial, one hundred thousand dollars of the one percent
of net terminal income provided for in this subdivision shall be
deposited in the special fund in the Division of Culture and
History created under section three, article one-i, chapter
twenty-nine of this code and be expended by the Division of Culture
and History to establish a West Virginia Veterans Memorial Archives
within the Cultural Center to serve as a repository for the
documents and records pertaining to the veterans memorial, to
restore and maintain the monuments and memorial on the capitol
grounds: Provided, however, That five hundred thousand dollars of
the one percent of net terminal income shall be deposited in the
State Treasury in a special fund of the Department of
Administration, created under section five, article four, chapter
five-a of this code, to be used for construction and maintenance of
a parking garage on the state capitol complex; and the remainder of the one percent of net terminal income shall be deposited in equal
amounts in the Capitol Dome and Improvements Fund created under
section two, article four, chapter five-a of this code and Cultural
Facilities and Capitol Resources Matching Grant Program Fund
created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of
June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net
terminal income shall be deposited in the State Treasury in a
special fund of the Department of Administration, created under
section five, article four, chapter five-a of this code, to be used
for construction and maintenance of a parking garage on the state
capitol complex; and
(ii) The remainder of the one percent of net terminal income
and all of the one percent of net terminal income described in
paragraph (B), subdivision (9), subsection (a), section ten-b of
this article shall be distributed as follows: The net terminal
income shall be deposited in equal amounts into the Capitol Dome
and Capitol Improvements Fund created under section two, article
four, chapter five-a of this code and the Cultural Facilities and
Capitol Resources Matching Grant Program Fund created under section
three, article one, chapter twenty-nine of this code until a total
of one million five hundred thousand dollars is deposited into the Cultural Facilities and Capitol Resources Matching Grant Program
Fund; thereafter, the remainder shall be deposited into the Capitol
Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the Commission on dates established by the
Commission. Upon a licensed racetrack's failure to maintain this
balance, the Commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency
under chapter eleven of this code. The interest shall begin to
accrue on the date payment is due to the Commission.
(e) The Commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The Commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each licensed
racetrack shall report to the Commission any discrepancies between
the Commission's statement and each terminal's mechanical and
electronic meter readings. The licensed racetrack is solely
responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the
Commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the Commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the Commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the Commission's records cannot be reconciled, final
disposition of the matter shall be determined by the Commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the Commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the Commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to
the total amount of cash inserted into each video lottery terminal
operated by a licensee, minus the total value of game credits which
are cleared from the video lottery terminal in exchange for winning
redemption tickets, and remit the amount as generated from its
terminals during the reporting period. The remittance shall be
sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the
payment would otherwise be completed through electronic funds
transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the Commission. The Commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(i) The Commission has the right to examine all accounts, bank
accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest, and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
Commission.
On motion of Senator McCabe, the following amendment to the
Finance committee amendment to the bill (Eng. H. B. No. 2780) was
reported by the Clerk and adopted:
On page one, by striking out everything after the section
caption and inserting in lieu thereof the following:
(a) The Commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
Commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be
remitted to the Commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the Commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the Commission. Licensed racetracks
must provide the Commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the Commission, the Commission shall
deduct an amount sufficient to reimburse the Commission for its
actual costs and expenses incurred in administering racetrack video
lottery at the licensed racetrack, and the resulting amount after
the deduction is the net terminal income. The amount deducted for
administrative costs and expenses of the Commission may not exceed
four percent of gross terminal income: Provided, That any amounts
deducted by the Commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the
State Lottery Fund. For all fiscal years beginning on or after the first day of July, two thousand one, the Commission shall not
receive an amount of gross terminal income in excess of the amount
of gross terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, but four percent of
any amount of gross terminal income received in excess of the
amount of gross terminal income received during the fiscal year
ending on the thirtieth day of June, two thousand one, shall be
deposited into the fund established in section eighteen-a, article
twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after the first
day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be divided as set out in section ten-b of this
article. The licensed racetrack's share is in lieu of all lottery
agent commissions and is considered to cover all costs and expenses
required to be expended by the licensed racetrack in connection
with video lottery operations. The division shall be made as
follows:
(1) The Commission shall receive thirty percent of net
terminal income, which shall be paid into the State Lottery Fund as
provided in section ten-a of this article;
(2) Until the first day of July, two thousand five, fourteen
percent of net terminal income at a licensed racetrack shall be
deposited in the special fund established by the licensee, and used
for payment of regular purses in addition to other amounts provided
for in article twenty-three, chapter nineteen of this code, on and
after the first day of July, two thousand five, the rate shall be
seven percent of net terminal income;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any amount in excess of the two
percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack is located that has
participated in the West Virginia Thoroughbred Development Fund
since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, said fifty percent to be divided
among the municipalities on a per capita basis as determined by the
most recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any amount in excess of the two
percent received during the fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack other than a racetrack
described in paragraph (A) of this proviso is located and where the
racetrack has been located in a municipality within the county
since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any other county other than a county
described in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the Licensed Racing
Association by making a deposit into a special fund to be
established by the Racing Commission to be used for payment into
the pension plan for all employees of the Licensed Racing
Association;
(5) The West Virginia Thoroughbred Development Fund created
under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia Greyhound Breeding Development Fund
created under section ten of said article shall receive an equal
share of a total of not less than one and one-half percent of the
net terminal income; Provided, That for any racetrack which does
not have a breeder's program supported by the thoroughbred
development fund or the greyhound breeding development fund, the
one and one-half percent provided for in this subdivision shall be
deposited in the special fund established by the licensee and used
for payment of regular purses, in addition to other amounts
provided in subdivision (2) of this subsection and article twenty-
three, chapter nineteen of this code.
(6) The West Virginia Racing Commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-seven forty-six and one-
half percent of net terminal income;
(8) (A) The Tourism Promotion Fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three,
the Tourism Commission shall transfer from the Tourism Promotion
Fund five million dollars of the three percent of the net terminal income described in this section and section ten-b of this article
into the fund administered by the West Virginia Economic
Development Authority pursuant to section seven, article fifteen,
chapter thirty-one of this code, five million dollars into the
Capitol Renovation and Improvement Fund administered by the
Department of Administration pursuant to section six, article four,
chapter five-a of this code and five million dollars into the Tax
Reduction and Federal Funding Increased Compliance Fund; and
(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this three percent of
net terminal income and the three percent of net terminal income
described in paragraph (B), subdivision (8), subsection (a),
section ten-b of this article shall be distributed as provided in
this paragraph as follows:
(i) 1.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Tourism Promotion Fund created under
section twelve, article two, chapter five-b of this code;
(ii) 0.375 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Development Office Promotion Fund
created under section three-b, article two, chapter five-b of this code;
(iii) 0.5 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Research Challenge Fund created under
section ten, article one-b, chapter eighteen-b of this code;
(iv) 0.6875 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the Capitol Renovation and Improvement Fund
administered by the Department of Administration pursuant to
section six, article four, chapter five-a of this code; and
(v) 0.0625 percent of the total amount of net terminal income
described in this section and in section ten-b of this article
shall be deposited into the 2004 Capitol Complex Parking Garage
Fund administered by the Department of Administration pursuant to
section five-a, article four, chapter five-a of this code;
(9) (A) On and after the first day of July, two thousand five,
seven percent of net terminal income shall be deposited into the
Workers' Compensation Debt Reduction Fund created in section five,
article two-d, chapter twenty-three of this code: Provided, That in
any fiscal year when the amount of money generated by this
subdivision totals eleven million dollars, all subsequent
distributions under this subdivision shall be deposited in the
special fund established by the licensee and used for the payment of regular purses in addition to the other amounts provided for in
article twenty-three, chapter nineteen of this code;
(B) The deposit of the seven percent of net terminal income
into the Workers Compensation Debt Reduction Fund pursuant to this
subdivision shall expire and not be imposed with respect to these
funds and shall be deposited in the special fund established by the
licensee and used for payment of regular purses in addition to the
other amounts provided for in article twenty-three, chapter
nineteen of this code, on and after the first day of the month
following the month in which the Governor certifies to the
Legislature that: (i) 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 (ii) 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; and
(10) The remaining one percent of net terminal income shall be
deposited as follows:
(A) For the fiscal year beginning the first day of July, two
thousand three, the Veterans Memorial Program shall receive one
percent of the net terminal income until sufficient moneys have
been received to complete the veterans memorial on the grounds of
the state capitol complex in Charleston, West Virginia. The moneys shall be deposited in the State Treasury in the Division of Culture
and History Special Fund created under section three, article
one-i, chapter twenty-nine of this code: Provided, That only after
sufficient moneys have been deposited in the fund to complete the
veterans memorial and to pay in full the annual bonded indebtedness
on the veterans memorial, not more than twenty thousand dollars of
the one percent of net terminal income provided for in this
subdivision shall be deposited into a special revenue fund in the
State Treasury, to be known as the "John F. 'Jack' Bennett Fund".
The moneys in this fund shall be expended by the Division of
Veterans Affairs to provide for the placement of markers for the
graves of veterans in perpetual cemeteries in this state. The
Division of Veterans Affairs shall promulgate legislative rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code specifying the manner in which the funds are spent,
determine the ability of the surviving spouse to pay for the
placement of the marker and setting forth the standards to be used
to determine the priority in which the veterans grave markers will
be placed in the event that there are not sufficient funds to
complete the placement of veterans grave markers in any one year,
or at all. Upon payment in full of the bonded indebtedness on the
veterans memorial, one hundred thousand dollars of the one percent
of net terminal income provided for in this subdivision shall be deposited in the special fund in the Division of Culture and
History created under section three, article one-i, chapter
twenty-nine of this code and be expended by the Division of Culture
and History to establish a West Virginia Veterans Memorial Archives
within the Cultural Center to serve as a repository for the
documents and records pertaining to the veterans memorial, to
restore and maintain the monuments and memorial on the capitol
grounds: Provided, however, That five hundred thousand dollars of
the one percent of net terminal income shall be deposited in the
State Treasury in a special fund of the Department of
Administration, created under section five, article four, chapter
five-a of this code, to be used for construction and maintenance of
a parking garage on the state capitol complex; and the remainder of
the one percent of net terminal income shall be deposited in equal
amounts in the Capitol Dome and Improvements Fund created under
section two, article four, chapter five-a of this code and Cultural
Facilities and Capitol Resources Matching Grant Program Fund
created under section three, article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of
June, two thousand four:
(i) Five hundred thousand dollars of the one percent of net
terminal income shall be deposited in the State Treasury in a
special fund of the Department of Administration, created under section five, article four, chapter five-a of this code, to be used
for construction and maintenance of a parking garage on the state
capitol complex; and
(ii) The remainder of the one percent of net terminal income
and all of the one percent of net terminal income described in
paragraph (B), subdivision (9), subsection (a), section ten-b of
this article shall be distributed as follows: The net terminal
income shall be deposited in equal amounts into the Capitol Dome
and Capitol Improvements Fund created under section two, article
four, chapter five-a of this code and the Cultural Facilities and
Capitol Resources Matching Grant Program Fund created under section
three, article one, chapter twenty-nine of this code until a total
of one million five hundred thousand dollars is deposited into the
Cultural Facilities and Capitol Resources Matching Grant Program
Fund; thereafter, the remainder shall be deposited into the Capitol
Dome and Capitol Improvements Fund.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the Commission on dates established by the
Commission. Upon a licensed racetrack's failure to maintain this
balance, the Commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency
under chapter eleven of this code. The interest shall begin to
accrue on the date payment is due to the Commission.
(e) The Commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The Commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each licensed
racetrack shall report to the Commission any discrepancies between
the Commission's statement and each terminal's mechanical and
electronic meter readings. The licensed racetrack is solely
responsible for resolving income discrepancies between actual money
collected and the amount shown on the accounting meters or on the
Commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the Commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the Commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the Commission's records cannot be reconciled, final disposition of the matter shall be determined by the Commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the Commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the Commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to
the total amount of cash inserted into each video lottery terminal
operated by a licensee, minus the total value of game credits which
are cleared from the video lottery terminal in exchange for winning
redemption tickets, and remit the amount as generated from its
terminals during the reporting period. The remittance shall be
sealed in a properly addressed and stamped envelope and deposited
in the United States mail no later than noon on the day when the
payment would otherwise be completed through electronic funds
transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the Commission. The Commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(i) The Commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed
racetrack's possession, under its control or in which it has an
interest, and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
Commission.
(j) A license to operate video lottery games shall be granted,
renewed or remain in full force and effect notwithstanding the
failure of the licensee to meet the requirements of subdivision
(6), subsection (a), section seven of this article.
The question now being on the adoption of the Finance
committee amendment to the bill, as amended, the same was put and
prevailed.
Having been engrossed, the bill, as just amended, was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--32.
The nays were: Harrison--1.
Absent: None.
Excused from voting: Bowman--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2780) passed.
On motion of Senator McCabe, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2780--A Bill to amend and reenact §29-22A-
10 of the Code of West Virginia, 1931, as amended, relating to
racetrack video lottery; increasing the allocation of racetrack
video lottery net terminal income to be used for payment into the
pension plan for employees of the Licensed Racing Association and
correspondingly reducing the allocation of racetrack video lottery
net terminal income to licensees; deleting provisions relating to
a racetrack which does not have a breeder's program supported by
the Thoroughbred Development Fund or Greyhound Breeding Development
Fund; requiring the one and one-half percent of net terminal income
designated for the West Virginia Thoroughbred Development Fund to
be diverted to the special fund established by the licensee and
used for payment of regular purses; limiting allocation to Workers'
Compensation and providing for distribution of certain funds to be
deposited in the special fund established by the licensee and used for payment of regular purses; providing for expiration of certain
income into the Workers' Compensation Debt Reduction Fund; and
providing for license to be granted, renewed or maintained
notwithstanding failure of licensee to meet certain requirements.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and again
proceeded to the eighth order of business.
Eng. House Bill No. 3098, Expanding the prohibitions and
criminal penalties for sexual exploitation or sexual abuse of a
child by a parent, or guardian or custodian to include offenses by
persons who hold a position of trust in relation to a child.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3098) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3104, Relating to the payment of
telecommunications charges.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 3104) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3125, Providing for biannual independent
review of the Neighborhood Investment Program and to extend the
program until July 1, 2008.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3125) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3138, Relating to requiring
health insurance plans to cover the cost of contraceptives.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Barnes, Harrison and Weeks--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3138) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3138--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §33-16E-1, §33-16E-2, §33-16E-3, §33-16E-4,
§33-16E-5, §33-16E-6 and §33-16E-7, all relating to insurance and
contraceptive coverage; providing definitions; specifying application of article; requiring health insurance plans provide
parity for contraceptive drugs, devices and outpatient services;
and providing exemptions and prohibitions.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3145, Providing immunity
from civil damages for persons who volunteer their services at the
public health departments.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3145) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3145--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §55-7-19a, relating to providing limited
immunity from civil damages for persons who volunteer their
services to public health departments during declared emergencies
and when acting within the scope of job description promulgated by
the National Center for Disease Control; and providing that the
limitation of liability does not apply to intentional tortious
conduct or acts or omissions constituting gross negligence.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3151, Regulating dialysis technicians by
the Board of Examiners for Registered Professional Nurses.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3151) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3151) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3152, Clarifying that the Board of Risk
and Insurance Management is not to provide insurance for every
property, activity or responsibility of the county boards of
education.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3152) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3152) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3153, Establishing the crime of railroad
vandalism.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3153) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3174, Providing that
expressions of apology, responsibility, sympathy, condolence or a general sense of benevolence made by a health care provider to a
patient, shall be inadmissable as evidence of admission of
liability.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3174) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 3178, Relating to domestic
violence and clarifying when permanent injunctions and other
provisions may be granted in final divorce orders.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3178) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 3178--A Bill to amend and
reenact §48-5-608 of the Code of West Virginia, 1931, as amended;
and to amend and reenact §48-27-305, §48-27-401, §48-27-503, §48-
27-504, §48-27-901 and §48-27-1001 of said code, all relating to
domestic violence generally; extending protection to any residence
expending bases for temporary protective orders; and authority
arrest for violations of out-of-state court orders.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3211, Permitting purchasers of motor fuels
upon which federal tax is due to delay payment of reimbursement of
the taxes to the vendor until the day before the payment is due the
Internal Revenue Service.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3211) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 3216, Describing the scope and limitations
of legislative immunity.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 3258, Permitting the sale of
nonintoxicating beer within a certain distance from a church that
consents to the sale.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Helmick,
Jenkins, Kessler, Lanham, Love, McCabe, Oliverio, Plymale,
Prezioso, Sharpe, Unger, Weeks, White and Yoder--23.
The nays were: Bailey, Barnes, Dempsey, Guills, Harrison,
Hunter, McKenzie, Minard, Minear, Sprouse and Tomblin (Mr.
President)--11.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3258) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 3258--A Bill to amend and reenact §11-16-8
of the Code of West Virginia, 1931, as amended, relating to
permitting the sale of nonintoxicating beer within a certain
distance from a church that consents to the sale; clarifying the
determination of distance for purpose of issuing license; granting
Commissioner discretion to refuse to issue license to business that
operates video lottery; and specific requirements.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3280, Relating to modifying the review by
the Public Service Commission of public convenience and necessity
applications where the project has been approved by the
Infrastructure and Jobs Development Council.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3280) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 3280--A Bill to amend and reenact §16-13A-
25 of the Code of West Virginia, 1931, as amended; and to amend and
reenact §24-2-11 of said code, all relating to modifying the review
by the Public Service Commission of public convenience and
necessity applications where the project has been approved by
Infrastructure and Jobs Development Council; removing the necessity
for public service districts to prefile with the Public Service
Commission; providing for a waiver of thirty-day notice requirement
for projects approved by the Infrastructure and Jobs Development
Council; providing that the Public Service Commission render a
final decision on Infrastructure and Jobs Development Council-
approved applications; providing that Infrastructure and Jobs
Development Council-approved projects receiving a certificate of
public convenience may not be compelled to reopen; and allowing electric power projects to apply for and receive certain licenses
and permits.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3354, Secretary's authority to assess a
permit fee for well work permit, deep wells, coalbed methane wells
and reclamation fund fees.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--31.
The nays were: Harrison, Love and Weeks--3.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3354) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3360, Requiring the IS & C Director to create and maintain an information systems disaster recovery
system.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3360) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
At the request of Senator White, unanimous consent being
granted, Senator White addressed the Senate regarding the adoption
of Senate Resolution No. 46 (Urging Congress to review provisions in the federal PATRIOT Act).
Thereafter, at the request of Senator Barnes, and by unanimous
consent, the remarks by Senator White were ordered printed in the
Appendix to the Journal.
The Senate again proceeded 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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 30, Discontinuing use of
prior approval system of insurance rate and form filing; other
provisions.
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 three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §33-2-20 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 §33-2-21; that §33-6-8 of said
code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §33-6-15a; that §33-16-2 of said code be amended and reenacted; that §33-16B-1 and §33-16B-3 of said
code be amended and reenacted; that §33-17-8 and §33-17-9 of said
code be amended and reenacted; that said code be amended by adding
thereto three new sections, designated §33-17A-4a, §33-17A-4b and
§33-17A-4c; and that §33-20-4 of said code be amended and
reenacted, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of Commissioner to allow withdrawal of
insurance carriers from doing business in the state.
(a) Notwithstanding any provision of the code to the contrary,
the Commissioner may, consistent with the provisions of this
section, authorize an insurer to withdraw from the line of
automobile liability insurance for personal, private passenger
automobiles covered by article six-a of this chapter or from doing
business entirely in this state if:
(1) The insurer has submitted and received approval from the
Commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the
Commissioner that allowing the insurer to withdraw would be in the
best interest of the insurer, its policyholders and the citizens of
this state.
(b) Any insurer that elects to nonrenew or cancel the
particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to
the Insurance Commissioner a withdrawal plan for informational
purposes only prior to cancellation or nonrenewal of all its
business in this state.
(c) The Commissioner shall promulgate rules pursuant to
chapter twenty-nine-a of this code setting forth the criteria for
withdrawal plans: Provided, That the procedural rules previously
promulgated setting forth the criteria for withdrawal plans, which
rules were made effective the twenty-fifth day of September, two
thousand four, shall continue in effect in the same manner as if
this section had not been amended during the first extraordinary
session of the Legislature in two thousand five.
§33-2-21. Authority of Insurance Commissioner to regulate workers
compensation industry; authority of Insurance
Commissioner to administer chapter twenty-three of
the code of West Virginia.
(a) Upon the termination of the Workers' Compensation
Commission pursuant to chapter twenty-three of this code, the
powers and duties heretofore imposed upon the Workers' Compensation
Commission as they relate to general administration of the
provisions of said chapter are hereby transferred to and imposed
upon the Insurance Commissioner.
(b) Unless otherwise specified in chapter twenty-three of this code, upon termination of the Workers' Compensation Commission, the
duties imposed upon the Workers' Compensation Commission as they
relate to the award and payment of disability and death benefits
and the review of claims in articles four and five, chapter twenty-
three of this code will be imposed upon the Employers Mutual
Insurance Company established pursuant to article two-c, chapter
twenty-three of this code, a private carrier offering workers'
compensation insurance in this state and self-insured employers.
Whenever reference is made to the Workers' Compensation
Commissioner in those articles, the duty prescribed shall apply to
the Employers Mutual Insurance Company, a private carrier or self-
insured employer, as applicable.
(c) From the effective date of this enactment, the Insurance
Commissioner shall regulate all insurers licensed to transact
workers' compensation insurance in this state and all of the
provisions of this chapter shall apply to such insurers, unless
otherwise exempted by statute.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-8. Filing of forms.
(a) Except as provided in section eight, article seventeen of
this chapter (fire and marine forms), no No insurance policy form,
no group certificate form, no insurance application form where a
written application is required and is to be made a part of the policy and no rider, endorsement or other form to be attached to
any policy shall be delivered or issued for delivery in this state
by an insurer unless it has been filed with the Commissioner and,
to the extent required by subdivision (1), subsection (b) of this
section, approved by the Commissioner, except that as to group
insurance policies delivered outside this state, only the group
certificates to be delivered or issued for delivery in this state
shall be filed for approval with the Commissioner. This section
shall does not apply to policies, riders, endorsements or forms of
unique character designed for and used with relation to insurance
upon a particular subject, or which relate to the manner of
distribution of benefits or to the reservation of rights and
benefits under life or accident and sickness insurance policies,
and are used at the request of the individual policyholder,
contract holder or certificate holder, nor to the surety bond forms.
(b) (1) Every such filing shall be made Forms for
noncommercial lines shall be filed by an insurer not no less than
sixty days in advance of any such delivery. At the expiration of
such sixty days the sixty-day period, unless the period was
extended by the Commissioner to obtain additional information from
the insurer, the form so filed shall be is deemed to be approved
unless prior thereto it has been was affirmatively approved or
disapproved by the Commissioner. Approval of any such form by the Commissioner shall constitute constitutes a waiver of any unexpired
portion of such waiting the sixty day period. The commissioner may
at any time, after notice and for cause shown, withdraw any such
approval.
(2) Forms for: (A) Commercial lines property and casualty
risks; and (B) any mass-marketed life and/or health insurance
policy offered to members of any association by the association
shall be filed with the Commissioner and need not be approved by
the Commissioner prior to use. The Commissioner may, within the
first thirty days after receipt of the form, request information to
ensure compliance with applicable statutory provisions and may
disapprove forms not in compliance with the provisions of this
chapter. If the Commissioner does not disapprove the form within
the thirty-day period, the form is effective upon its first use
after filing.
(c) Any order of the Commissioner disapproving any such form
or withdrawing a previous approval shall state the grounds
therefor.
(c) When an insurer does not submit supporting information
with the form filing that allows the Commissioner to determine
whether the form meets all applicable statutory requirements, the
Commissioner shall require the insurer to furnish supporting
information. The sixty-day period for personal lines risks shall be suspended on the date the Commissioner requests additional
information and shall recommence on the date the Commissioner
receives the supporting information: Provided, That the
Commissioner shall have no less than fifteen days from receipt of
the supporting information to act. The Commissioner may request
additional information after the initial sixty-day period with
respect to noncommercial lines, or thirty-day period with respect
to commercial lines and mass-marketed life and/or health insurance
to associations, to ensure continuing compliance with applicable
statutory provisions and may at any time, after notice and for
cause shown, withdraw any approval or disapprove any form:
Provided, however, That any disapproval by the Commissioner of any
form or withdrawal of a previous approval shall state the grounds
therefor and shall include a notice that the insurer may request a
hearing on the denial or withdrawal of approval.
(d) The Commissioner may, by order, exempt from the
requirements of this section for so long as he or she deems
considers proper any insurance document or form or type thereof as
specified in such the order, to which, in his or her opinion, this
section may not practicably be applied, or the filing and approval
of which are, in his or her opinion, not desirable or necessary for
the protection of the public.
(e) Notwithstanding any other provisions of this section, any mass marketed life and/or health insurance policy offered to
members of any association by the association shall be exempt from
the provision requiring prior approval under this section:
Provided, That for For purposes of this section: the association
shall
(1) An association must have a minimum of sixty-one members at
the outset of the issuance of the mass-marketed life and/or health
insurance policy and shall have been organized and maintained in
good faith for purposes other than that of obtaining or providing
insurance. Provided, however, That the The association shall also
have been in active existence for at least two years and shall have
a constitution and bylaws which provide that: (i) (A) The
association holds annual meetings to further purposes of its
members; (ii) (B) except in the case of credit unions, the
association collects dues or solicits contributions from members;
and (iii) (C) the members have voting privileges and representation
on the governing board and committees that exist under the
authority of the association: Provided, further, That upon written
application by an association and for good cause shown, the
Commissioner may grant an exemption to the association from the
minimum member requirements of this section.
(2) "Commercial lines" means insurance for business and
professional interests, except that it does not include medical malpractice insurance.
(3) "Noncommercial lines" means all insurance other than
commercial lines and includes medical malpractice and insurance for
personal, family and household needs.
(f) This section shall apply also applies to any form used by
domestic insurers for delivery in a jurisdiction outside West
Virginia if the insurance supervisory official of such the
jurisdiction informs the Commissioner that such the form is not
subject to approval or disapproval by such the official and upon
the Commissioner's order requiring the form to be submitted to him
or her for the that purpose. The applicable same standards shall
applicable to forms for domestic use apply to such forms as apply
to forms for domestic use used by domestic insurers for delivery in
a jurisdiction outside West Virginia.
§33-6-15a. Notation of consumer cost savings.
Each policy issued following enactment of this provision
during the two thousand five regular session, during the year
following the effective date, shall display in a prominent location
on the policy itself or on an insert included with each policy and
provided to each policyholder, statements as following:
"YOUR COSTS FOR THIS POLICY (HAVE/HAVE NOT) BEEN REDUCED BY
(insert savings amount here) BECAUSE OF INSURANCE LAW REFORMS
ENACTED BY THE WEST VIRGINIA LEGISLATURE IN 2005 AND SIGNED INTO LAW BY THE GOVERNOR."
If the insurer did not offer the type of insurance provided
by the policy in two thousand four, the requirement for these
statements do not apply.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS.
§33-16-2. Eligible groups.
Any insurer licensed to transact accident and sickness
insurance in this state may issue group accident and sickness
policies coming within any of the following classifications:
(a) (1) A policy issued to an employer, who shall be
considered the policyholder, insuring at least ten employees of
such the employer, for the benefit of persons other than the
employer, and conforming to the following requirements:
(1) (A) If the premium is paid by the employer the group shall
comprise all employees or all of any class or classes thereof
determined by conditions pertaining to the employment; or
(2) (B) If the premium is paid by the employer and employees
jointly, or by the employees, the group shall comprise not less
than seventy percent of all employees of the employer or not less
than seventy-five percent of all employees of any class or classes
thereof determined by conditions pertaining to the employment;
(3) (C) The term "employee" as used herein shall be is
considered to include the officers, managers and employees of the employer, the partners, if the employer is a partnership, the
officers, managers and employees of subsidiary or affiliated
corporations of a corporation corporate employer, and the
individual proprietors, partners and employees of individuals and
firms, the business of which is controlled by the insured employer
through stock ownership, contract or otherwise. The term
"employer" as used herein may be considered to include any
municipal or governmental corporation, unit, agency or department
thereof and the proper officers, as such, of any unincorporated
municipality or department thereof, as well as private individuals,
partnerships and corporations;
(b) A policy issued to an association which has been in
existence for at least one year, which has a constitution and
bylaws and which has been organized and is maintained in good faith
for purposes other than that of obtaining insurance, insuring at
least ten members of the association for the benefit of persons
other than the association or its officers or trustees, as such;
(2) A policy issued to an association or to a trust or to the
trustees of a fund established, created or maintained for the
benefit of members of one or more associations. The association or
associations shall have at the issuance of the policy a minimum of
one hundred persons and have been organized and maintained in good
faith for purposes other than that of obtaining insurance; shall have been in active existence for at least one year; and shall have
a constitution and bylaws that provide that: The association or
associations hold regular meetings not less than annually to
further the purposes of the members; except for credit unions, the
association or associations collect dues or solicit contributions
from members; and the members have voting privileges and
representation on the governing board and committees. The policy
is subject to the following requirements:
(A) The policy may insure members of the association or
associations, employees thereof or employees of members, or one or
more of the preceding or all of any class or classes for the
benefit of persons other than the employee's employer.
(B) The premium for the policy shall be paid from:
(i) Funds contributed by the association or associations;
(ii) Funds contributed by covered employer members;
(iii) Funds contributed by both covered employer members and
the association or associations;
(iv) Funds contributed by the covered persons; or
(v) Funds contributed by both the covered persons and the
association, associations or employer members.
(C) Except as provided in paragraph (D) of this subdivision,
a policy on which no part of the premium is to be derived from
funds contributed by the covered persons specifically for their insurance must insure all eligible persons, except those who reject
coverage in writing.
(D) An insurer may exclude or limit the coverage on any person
as to whom evidence of individual insurability is not satisfactory
to the insurer.
(E) A small employer, as defined in subdivision (r),section
two, article sixteen-d of this chapter, insured under an eligible
group policy provided in this subdivision shall also be subject to
the marketing and rate practices provisions in article sixteen-d of
this chapter;
(c) (3) A policy issued to a bona fide association;
(d) (4) A policy issued to a college, school or other
institution of learning or to the head or principal thereof,
insuring at least ten students, or students and employees, of the
institution;
(e) (5) A policy issued to or in the name of any volunteer
fire department, insuring all of the members of the department or
all of any class or classes thereof against any one or more of the
hazards to which they are exposed by reason of the membership but
in each case not less than ten members;
(f) (6) A policy issued to any person or organization to which
a policy of group life insurance may be issued or delivered in this
state, to insure any class or classes of individuals that could be insured under the group life policy; and
(7) A policy issued to cover any other substantially similar
group which in the discretion of the Commissioner may be subject to
the issuance of a group accident and sickness policy or contract.
ARTICLE 16B. ACCIDENT AND SICKNESS RATES.
§33-16B-1. Filing and approval of accident and sickness rates.
Premium rate charges for any individual or group accident and
sickness insurance policy, or for any group accident and sickness
insurance policy issued pursuant to this chapter certificate or
other evidence of insurance issued, endorsed or delivered in this
state shall be filed with the Commissioner for a waiting period of
sixty days before such the charges become effective. At the
expiration of such sixty days the premium rate charges so filed
shall be are deemed approved unless prior thereto the charges have
been affirmatively approved or disapproved by the Commissioner.
The Commissioner shall disapprove accident and health
insurance premium rates which are not in compliance with the
requirements of this chapter or any rule promulgated by the
Commissioner pursuant to section two of this article. The
Commissioner shall send written notice of such the disapproval to
the insurer. The Commissioner may approve the premium rates before
the sixty-day period expires by giving written notice of approval.
§33-16B-3. Exceptions.
This article shall does not apply to policies issued to group
accident and health insurance plans upon which premiums are
negotiated with the individual group policyholder and are based on
the historic and projected loss experience of the group to be
insured experienced rated.
§33-17-8. Filing of forms.
(a) No fire or marine policy, rider or endorsement to be
attached to any policy covering any risk located or to be performed
in West Virginia shall be delivered or issued for delivery in this
state unless either that form is: (1) Filed with and approved by
the Commissioner; or (2) conforms to applicable legislative rules
approved by of the Commissioner; or (3) is identical as to language
to a policy, rider or endorsement approved by the Commissioner; or
(4) qualifies under subsection (c) of this section. If the use of
any such form under the provisions of clause subdivision (2) above
by any insurer or by the members and subscribers of any rating
organization shall be is so extensive that in the opinion of the
Commissioner the public interest requires, the Commissioner may
require that such the form be filed with him or her by such the
insurer or by such the rating organization on behalf of its members
and subscribers.
(b) The procedure for filing and approval or disapproval of
forms under this section shall be that is provided in paragraphs (b), (c), (d), and (e) of section eight, of article six of this
chapter. Grounds for disapproval shall be are those set forth in
section nine of said article. Such filings Filings may be made on
behalf of any insurer by a rating organization licensed as such
under the provisions of article twenty of this chapter. This
section shall does not apply to ocean marine policies, riders or
endorsements or to forms on specially rated inland marine risks.
(c) For commercial lines risks, a fire or marine policy, rider
or endorsement is subject to the provisions of section six, article
eight of this chapter governing other commercial lines form filings
as defined in section eight, article six of this chapter.
ARTICLE 17. FIRE AND MARINE INSURANCE.
§33-17-9. Total or partial fire loss.
All insurers issuing policies providing fire insurance on real
property situate in West Virginia shall be liable, in case of total
loss by fire or otherwise, as stated in the policy, for the whole
amount of insurance stated in the policy, upon such real property;
and in case of partial loss by fire or otherwise, as aforesaid, of
the real property insured, the liability shall be for the total
amount of such the partial loss, not to exceed the whole amount of
insurance upon such the real property as stated in the policy.
This section shall does not apply where such insurance has been
procured from two or more insurers covering the same interest in such real property.
ARTICLE 17A. PROPERTY INSURANCE DECLINATION, TERMINATION AND
DISCLOSURE.
§33-17A-4a. Alternative method for nonrenewal for property
insurance.
(a) On or after the first day of July, two thousand five, an
insurer may nonrenew a property insurance policy for any reason
that is consistent with its underwriting standards.
(b) Notwithstanding any other provisions in this section,
race, religion, nationality, ethnic group, age, sex, marital status
or other reason prohibited by the provisions of this chapter may
not be considered as a reason for nonrenewal.
(c) Notwithstanding the provisions of subsection (c), section
four of this article, a nonrenewal may only be issued pursuant to
the provisions of this section upon notice to the named insured at
least thirty days before the end of the policy period of the
insurer's election not to renew the policy.
(d) Commencing the first day of July, two thousand five, the
total number of nonrenewal notices issued by the insurer each year
pursuant to this section that result in nonrenewals may not exceed
one percent per year of the total number of the policies of the
insurer in force at the end of the previous calendar year in this
state: Provided, That the total number of such nonrenewal notices issued each year to insureds within any given county in this state
that result in nonrenewals may not exceed one percent per year of
the total number of policies in force in that county at the end of
the previous calendar year: Provided, however, That an insurer may
nonrenew one policy per year in any county if the applicable
percentage limitation results in less than one policy.
(e) A notice issued pursuant to this section shall state the
specific reason or reasons for refusal to renew and shall advise
the named insured that nonrenewal of the policy for any reason is
subject to a hearing and review as provided in section seven of
this article: Provided, That the hearing shall relate to whether
the nonrenewal of the policy was issued for a discriminatory
reason, was based upon inadequate notice, was based on an
underwriting standard found by the Commissioner to be in violation
of this chapter or causes the insurer to exceed the percentage
limitations, or percentage limitations by county, of nonrenewal
notices set forth in this section. The notice shall also advise
the insured of possible eligibility for coverage through the West
Virginia Essential Property Insurance Association.
(f) Each insurer licensed to write property insurance policies
in this state shall file with the Commissioner a copy of its
underwriting standards, including any amendments or supplements.
The Commissioner shall review and examine the underwriting standards to ensure that they are consistent with generally
accepted underwriting principles. The underwriting standards filed
with the Commissioner shall be considered confidential by law and
privileged, are exempt from disclosure pursuant to chapter twenty-
nine-b of this code, are not open to public inspection, are not
subject to subpoena, are not subject to discovery or admissible in
evidence in any criminal, civil or administrative action and are
not subject to production pursuant to court order. The
Commissioner may promulgate legislative rules pursuant to chapter
twenty-nine-a of this code to implement the provisions of this
section.
(g) Each insurer that has elected to issue nonrenewal notices
pursuant to the percentage limitations provided in this section
shall report to the Commissioner, on or before the thirtieth day of
September of each year the total number of nonrenewal notices
issued in this state and in each county of this state for the
preceding year and the specific reason or reasons for the
nonrenewals by county.
§33-17A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write property insurance policies
in this state as of the first day of July, two thousand five, may
elect to issue all nonrenewal notices either pursuant to subsection
(c), section four of this article or section four-a of this article. Each insurer must notify the Commissioner of its election
on or before the first day of July, two thousand five, and shall
remain bound by the election for a period of five years. For each
subsequent five-year period, each insurer shall notify the
Commissioner of its election to issue all nonrenewal notices either
pursuant to subsection (c), section four of this article or section
four-a of this article. The failure of an insurer to notify the
Commissioner of its election by the first day of July, two thousand
five, will be considered to be an election by the insurer to issue
all nonrenewal notices pursuant to subsection (c), section four of
this article and the insurer will be bound by the election for a
period of five years.
(b) An insurer that is not licensed to write property
insurance policies in this state as of the first day of July, two
thousand five, but which becomes licensed to write property
insurance policies after that date shall, no later than four years
after the date the insurer becomes licensed to write the policies,
make an election to issue all nonrenewal notices either pursuant to
subsection (c), section four of this article or section four-a of
this article and shall notify the Commissioner of its election. If
the insurer elects to issue all nonrenewal notices pursuant to
section four-a of this article, the total number of nonrenewals may
not exceed the percentage limitations set forth in that section. An insurer first becoming licensed to issue property insurance
policies in this state after the first day of July, two thousand
five, shall be bound by its election for a period of five years and
for each subsequent five-year period shall notify the Commissioner
of its election to issue all nonrenewal notices either pursuant to
subsection (c), section four of this article or section four-a of
this article.
(c) An insurer that elects to issue nonrenewals pursuant to
subsection (c), section four of this article may include as a
permitted reason for nonrenewal of a policy, in addition to the
reasons enumerated in section five of this article, two or more
paid claims under a policy within a period of thirty-six months,
each of which occurs after the first day of July, two thousand
five.
§33-17A-4c. Report to the Legislature.
By the first day of January, two thousand ten, the
Commissioner shall submit a report to the Legislature. The report
shall contain the following:
(1) An analysis of the impact of legislation enacted during
the two thousand five legislative session upon rates and insurance
availability in the state; and
(2) Statistics reflecting the rate history of insurers
conducting business in West Virginia from the first day of July, two thousand five, until the first day of July, two thousand nine.
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-4. Rate filings.
(a) (1) Every insurer shall file with the Commissioner every
manual of classifications, territorial rate areas established
pursuant to subdivision (2), subsection (c), section three of this
article, rules and rates, every rating plan and every modification
of any of the foregoing which it proposes to use for casualty
insurance to which this article applies.
(2) Every insurer shall file with the Commissioner, except as
to inland marine risks which by general custom of the business are
not written according to manual rates or rating plans, every
manual, minimum, class rate, rating schedule or rating plan and
every other rating rule and every modification of any of the
foregoing which it proposes to use for fire and marine insurance to
which this article applies. Specific inland marine rates on risks
specially rated, made by a rating organization, shall be filed with
the Commissioner.
(b) Every such filing shall state the proposed effective date
thereof and shall indicate the character and extent of the coverage
contemplated. When a filing is not accompanied by the information
upon which the insurer supports such the filing and the
Commissioner does not have sufficient information to determine whether such the filing meets the requirements of this article, he
or she shall require such the insurer to furnish the information
upon which it supports such the filing and in such that event the
waiting period shall commence as of the date such the information
is furnished. The information furnished in support of a filing may
include: (1) The experience or judgment of the insurer or rating
organization making the filing; (2) the experience or judgment of
the insurer or rating organization in the territorial rate areas
established by subdivision (2), subsection (c), section three of
this article; (3) its interpretation of any statistical data it
relies upon; (4) the experience of other insurers or rating
organizations; or (5) any other relevant factors. A filing and any
supporting information shall be is open to public inspection as
soon as the filing is received by the Commissioner. Any interested
party may file a brief with the Commissioner supporting his or her
position concerning the filing. Any person or organization may
file with the Commissioner a signed statement declaring and
supporting his or her or its position concerning the filing. Upon
receipt of such the statement prior to the effective date of the
filing, the Commissioner shall mail or deliver a copy of such the
statement to the filer, which may file such a reply as it may
desire to make. This section shall is not be applicable to any
memorandum or statement of any kind by any employee of the Commissioner.(c) An insurer may satisfy its obligation to make such a
filing by becoming a member of, or a subscriber to, a licensed
rating organization which makes such filings and by authorizing the
Commissioner to accept such filings on its behalf: Provided, That
nothing contained in this article shall be construed as requiring
any insurer to become a member of or a subscriber to any rating organization.
(d) The Commissioner shall review filings as soon as
reasonably possible after they have been made in order to determine
whether they meet the requirements of this article.
(e) Subject to the exceptions specified in subsections (f),
and (g) and (h) of this section, each filing shall be on file for
a waiting period of sixty days before it becomes effective. Upon
written application by such an insurer or rating organization, the
Commissioner may authorize a filing which he or she has reviewed to
become effective before the expiration of the waiting period. A
filing shall be deemed to meet the requirements of this article
unless disapproved by the Commissioner within the waiting period.
(f) Any special filing with respect to a surety bond required
by law or by court or executive order or by order, rule or
regulation of a public body, not covered by a previous filing,
shall become effective when filed and shall be deemed to meet the
requirements of this article until such time as the Commissioner
reviews the filing and so long thereafter as the filing remains in effect.
(g) Specific inland marine rates on risks specially rated by
a rating organization shall become effective when filed and shall
be deemed to meet the requirements of this article until such time
as the Commissioner reviews the filing and so long thereafter as
the filing remains in effect.
(h) Rates for commercial lines property and casualty risks
must be filed with the Commissioner and the filings need not be
approved by the Commissioner. The Commissioner may request
additional information to ensure compliance with applicable
statutory standards, but if the Commissioner does not disapprove
the filing within the initial thirty-day period after receipt, the
rate filing will become effective upon first usage after filing:
Provided, That the Commissioner may at any time thereafter, after
notice and for cause shown, disapprove any rate filing.
(h) (i) Under such legislative rules and regulations as he
shall adopt, the Commissioner may, by written order, suspend or
modify the requirement of filing as to any kind of insurance,
subdivision or combination thereof, or as to classes of risks, the
rates for which cannot practicably be filed before they are used.
Such These orders and rules and regulations shall be made known to
insurers and rating organizations affected thereby. The
Commissioner may make such any examination as he or she may deem consider advisable to ascertain whether any rates affected by such
an order meet the standards set forth in subsection (b), section
three of this article.
(i) (j) Upon the written application of the insured, stating
his or her reasons therefor, filed with and approved by the
Commissioner, a rate in excess of that provided by a filing
otherwise applicable may be used on any specific risks.
(j) (k) No insurer shall make or issue a contract or policy
except in accordance with the filings which are in effect for said
that insurer as provided in this article. or in accordance with
subsection (h) or (i) of this section. This subsection shall does
not apply to contracts or policies for inland marine risks as to
which filings are not required.
(k) (l) In instances when an insurer files a request for an
increase of automobile liability insurance rates in the amount of
fifteen percent or more, the Insurance Commissioner shall provide
notice of such the increase with the office of the Secretary of
State to be filed in the state register and shall provide
interested persons the opportunity to comment on such the request
up to the time the Commissioner approves or disapproves such the
rate increase.
(m) For purposes of this section, "commercial" means
commercial lines as defined in subdivision (2), subsection (e), section eight, article six of this chapter.
;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 30--A Bill
to amend and
reenact §33-2-20 of the Code of West Virginia, 1931, as amended; to
amend said code by adding thereto a new section, designated §33-2-
21; to amend and reenact §33-6-8 of said code; to amend said code
by adding thereto a new section, designated §33-6-15a; to amend and
reenact §33-16-2 of said code; to amend and reenact §33-16B-1 and
§33-16B-3 of said code; to amend and reenact §33-17-8 and §33-17-9
of said code; to amend said code by adding thereto three new
sections, designated §33-17A-4a, §33-17A-4b and §33-17A-4c; and to
amend and reenact §33-20-4 of said code, all relating to insurance
law reforms and modifications generally; allowing the Commissioner
to permit automobile insurers to withdraw from doing business in
this state; requiring insurer to submit a plan; permitting
promulgation of rules; redesignating a section of the insurance
code enacted as part of the bill assigning workers' compensation
duties to the Insurance Commissioner; clarifying that certain rules
remain in effect; exempting commercial insurance lines from the
requirement of prior approval of rates and forms; establishing
requirements for prior approval; providing for suspension of review period when additional information is requested; providing
definitions; clarifying that certain health insurance forms
marketed to associations must be filed with the Commissioner;
providing that commercial and certain health insurance forms
marketed to associations are effective upon first use after filing;
providing certain requirements for association policies; providing
for a notation of savings on policies; clarifying that prior rate
approval applies to health insurance certificates and endorsements;
providing for filing of fire and marine insurance rider or
endorsement review; adding a ground for nonrenewal of property
insurance policies; providing an alternative method for nonrenewal
of property insurance; providing a manner of electing an
alternative method; requiring report to the Legislature; and making
certain technical changes.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed consideration of
Eng. Com. Sub. for Senate Bill No. 30, Discontinuing use of
prior approval system of insurance rate and form filing; other
provisions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 30, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 30) passed with its House of Delegates
amended title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 418, Providing insurance
reform by expanding and providing funding and expanded powers for
Office of Consumer Advocacy.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §33-2-9, §33-2-16 and §33-2-17 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 §33-2-
15d; that §33-3-33 of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated §33-6-
15a; that said code be amended by adding thereto two new sections,
designated §33-11-4a and §33-11-4b; that §33-11-6 of said code be
amended and reenacted; and that said code be amended by adding
thereto a new section, designated §33-20-4a, all to read as
follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-9. Examination of insurers, agents, brokers and solicitors;
access to books, records, etc.
(a) The purpose of this section is to provide an effective and
efficient system for examining the activities, operations,
financial condition and affairs of all persons transacting the
business of insurance in this state and all persons otherwise subject to the jurisdiction of the Commissioner
. The provisions of
this section are intended to enable the Commissioner
to adopt a
flexible system of examinations which directs resources as may be
considered appropriate and necessary for the administration of the
insurance and insurance-related laws of this state.
(b) For purposes of this section, the following definitions
shall apply:
(1) "Commissioner" means the Commissioner of Insurance of this
state;
(2) "Company" or "insurance company" means any person engaging
in or proposing or attempting to engage in any transaction or kind
of insurance or surety business and any person or group of persons
who may otherwise be subject to the administrative, regulatory or
taxing authority of the Commissioner, including, but not limited
to, any domestic or foreign stock company, mutual company, mutual
protective association, farmers mutual fire companies, fraternal
benefit society, reciprocal or interinsurance exchange, nonprofit
medical care corporation, nonprofit health care corporation,
nonprofit hospital service association, nonprofit dental care
corporation, health maintenance organization, captive insurance
company, risk retention group or other insurer regardless of the
type of coverage written, benefits provided or guarantees made by
each;
(3) "Department" means the Department of Insurance
of this
state; and
(4) "Examiners" means the Commissioner of Insurance
or any
individual or firm having been authorized by the Commissioner
to
conduct an examination pursuant to this section, including, but not
limited to, the Commissioner's deputies, other employees, appointed
examiners or other appointed individuals or firms who are not
employees of the Department of Insurance
.
(c) The Commissioner
or his or her examiners may conduct an
examination under this section of any company as often as the
Commissioner
in his or her discretion considers appropriate. The
Commissioner
or his or her examiners shall at least once every five
years visit each domestic insurer and thoroughly examine its
financial condition and methods of doing business and ascertain
whether it has complied with all the laws and regulations of this
state. The Commissioner
may also examine the affairs of any
insurer applying for a license to transact any insurance business
in this state.
(d) The Commissioner
or his or her examiners shall, at a
minimum, conduct an examination of every foreign or alien insurer
licensed in this state not less frequently than once every five
years. The examination of an alien insurer may be limited to its
United States business: Provided, That in lieu of an examination under this section of any foreign or alien insurer licensed in this
state, the Commissioner
may accept an examination report on the
company as prepared by the insurance department for the company's
state of domicile or port-of-entry state until the first day of
January, one thousand nine hundred ninety-four. Thereafter, the
reports may only be accepted if:
(1) The insurance department was at the time of the
examination accredited under the National Association of Insurance
Commissioners' Financial Regulation Standards and Accreditation
Program
; or
(2) The examination is performed under the supervision of an
accredited insurance department or with the participation of one or
more examiners who are employed by an accredited state insurance
department and who, after a review of the examination work papers
and report, state under oath that the examination was performed in
a manner consistent with the standards and procedures required by
their insurance department.
(e) In scheduling and determining the nature, scope and
frequency of examinations conducted pursuant to this section, the
Commissioner
may consider such matters as the results of financial
statement analyses and ratios, changes in management or ownership,
actuarial opinions, reports of independent certified public
accountants and other criteria as set forth in the examiners' handbook adopted by the National Association of Insurance
Commissioners
and in effect when the Commissioner
exercises
discretion under this section.
(f) For purposes of completing an examination of any company
under this section, the Commissioner
may examine or investigate any
person, or the business of any person, insofar as the examination
or investigation is, in the sole discretion of the Commissioner
,
necessary or material to the examination of the company.
(g) The Commissioner
may also cause to be examined, at the
times as he or she considers necessary, the books, records, papers,
documents, correspondence and methods of doing business of any
agent, broker, excess lines broker or solicitor licensed by this
state. For these purposes, the Commissioner
or his or her
examiners shall have free access to all books, records, papers,
documents and correspondence of all the agents, brokers, excess
lines brokers and solicitors wherever the books, records, papers,
documents and records are situate. The Commissioner
may revoke the
license of any agent, broker, excess lines broker or solicitor who
refuses to submit to the examination.
(h) In addition to conducting an examination, the Commissioner
or his or her examiners may, as the Commissioner
considers
necessary, analyze or review any phase of the operations or methods
of doing business of an insurer, agent, broker, excess lines broker, solicitor or other individual or corporation transacting or
attempting to transact an insurance business in the State of West
Virginia. The Commissioner
may use the full resources provided by
this section in carrying out these responsibilities, including any
personnel and equipment provided by this section as the
Commissioner
considers necessary.
(i) Examinations made pursuant to this section shall be
conducted in the following manner:
(1) Upon determining that an examination should be conducted,
the Commissioner
or his or her designee shall issue an examination
warrant appointing one or more examiners to perform the examination
and instructing them as to the scope of the examination. The
appointment of any examiners pursuant to this section by the
Commissioner
shall not be subject to the requirements of article
three, chapter five-a of this code, except that the contracts and
agreements shall be approved as to form and conformity with
applicable law by the Attorney General
. In conducting the
examination, the examiner shall observe those guidelines and
procedures set forth in the examiners' handbook adopted by the
National Association of Insurance Commissioners
. The Commissioner
may also employ any other guidelines or procedures as the
Commissioner
may consider appropriate;
(2) Every company or person from whom information is sought, its officers, directors and agents shall provide to the examiners
appointed under subdivision (1) of this subsection timely,
convenient and free access at all reasonable hours at its offices
to all books, records, accounts, papers, documents and any or all
computer or other recordings relating to the property, assets,
business and affairs of the company being examined. The officers,
directors, employees and agents of the company or person shall
facilitate the examination and aid in the examination so far as it
is in their power to do so;
(3) The refusal of any company, by its officers, directors,
employees or agents, to submit to examination or to comply with any
reasonable written request of the examiners shall be grounds for
suspension, revocation, refusal or nonrenewal of any license or
authority held by the company to engage in an insurance or other
business subject to the Commissioner's jurisdiction. Any
proceedings for suspension, revocation, refusal or nonrenewal of
any license or authority shall be conducted pursuant to section
eleven of this article;
(4) The Commissioner
or his or her examiners shall have the
power to issue subpoenas, to administer oaths and to examine under
oath any person as to any matter pertinent to the examination,
analysis or review. The subpoenas shall be enforced pursuant to
the provisions of section six of this article;
(5) When making an examination, analysis or review under this
section, the Commissioner
may retain attorneys, appraisers,
independent actuaries, independent certified public accountants,
professionals or specialists with training or experience in
reinsurance, investments or information systems or other
professionals and specialists as examiners, the cost of which shall
be borne by the company which is the subject of the examination,
analysis or review or, in the Commissioner's discretion, paid from
the Commissioner's Examination Revolving Fund. The Commissioner
may recover costs paid from the Commissioner's Examination
Revolving Fund pursuant to this subdivision from the company upon
which the examination, analysis or review is conducted unless the
subject of the examination, analysis or review is an individual
described in subdivision (2), subsection (q) of this section;
(6) Nothing contained in this section may be construed to
limit the Commissioner's authority to terminate or suspend any
examination, analysis or review in order to pursue other legal or
regulatory action pursuant to the insurance laws of this state.
The Commissioner
or his or her examiners may at any time testify
and offer other proper evidence as to information secured during
the course of an examination, analysis or review whether or not a
written report of the examination has at that time either been
made, served or filed in the Commissioner's office;
(7) Nothing contained in this section may be construed to
limit the Commissioner's authority to use and, if appropriate, to
make public any final or preliminary examination report, any
examiner or company workpapers or other documents or any other
information discovered or developed during the course of any
examination, analysis or review in the furtherance of any legal or
regulatory action which the Commissioner may, in his or her sole
discretion, consider appropriate. An examination report, when
filed, shall be admissible in evidence in any action or proceeding
brought by the Commissioner
against an insurance company, its
officers or agents and shall be prima facie evidence of the facts
stated therein.
(j) Examination reports prepared pursuant to the provisions of
this section shall comply with the following requirements:
(1) All examination reports shall be comprised of only facts
appearing upon the books, records or other documents of the
company, its agents or other persons examined or as ascertained
from the testimony of its officers or agents or other persons
examined concerning its affairs and any conclusions and
recommendations the examiners find reasonably warranted from the
facts;
(2) No later than sixty days following completion of the
examination the examiner in charge shall file with the Commissioner
a verified written report of examination under oath. Upon receipt
of the verified report, the Commissioner
shall transmit the report
to the company examined, together with a notice which shall afford
the company examined a reasonable opportunity of not more than ten
days to make a written submission or rebuttal with respect to any
matters contained in the examination report;
(3) Within thirty days of the end of the period allowed for
the receipt of written submissions or rebuttals, the Commissioner
shall fully consider and review the report, together with any
written submissions or rebuttals and any relevant portions of the
examiner's workpapers and enter an order:
(A) Adopting the examination report as filed or with
modification or corrections. If the examination report reveals
that the company is operating in violation of any law, rule or
prior order of the Commissioner
, the Commissioner
may order the
company to take any action the Commissioner
considers necessary and
appropriate to cure the violation; or
(B) Rejecting the examination report with directions to the
examiners to reopen the examination for purposes of obtaining
additional data, documentation or information and refiling pursuant
to subdivision (2) of this subsection; or
(C) Calling for an investigatory hearing with no less than
twenty days' notice to the company for purposes of obtaining additional documentation, data, information and testimony;
(4) All orders entered pursuant to this subsection shall be
accompanied by findings and conclusions resulting from the
Commissioner's consideration and review of the examination report,
relevant examiner workpapers and any written submissions or
rebuttals. Any order issued pursuant to paragraph (A), subdivision
(3) of this subsection shall be considered a final administrative
decision and may be appealed pursuant to section fourteen of this
article and shall be served upon the company by certified mail,
together with a copy of the adopted examination report. Within
thirty days of the issuance of the adopted report, the company
shall file affidavits executed by each of its directors stating
under oath that they have received a copy of the adopted report and
related orders.
(k) Hearings conducted pursuant to this section shall be
subject to the following requirements:
(1) Any hearing conducted pursuant to this section by the
Commissioner
or the Commissioner's authorized representative shall
be conducted as a nonadversarial confidential investigatory
proceeding as necessary for the resolution of any inconsistencies,
discrepancies or disputed issues apparent upon the face of the
filed examination report or raised by or as a result of the
Commissioner's review of relevant workpapers or by the written submission or rebuttal of the company. Within twenty days of the
conclusion of any hearing, the Commissioner
shall enter an order
pursuant to paragraph (A), subdivision (3), subsection (j) of this
section;
(2) The Commissioner
may not appoint an examiner as an
authorized representative to conduct the hearing. The hearing
shall proceed expeditiously with discovery by the company limited
to the examiner's workpapers which tend to substantiate any
assertions set forth in any written submission or rebuttal. The
Commissioner
or the Commissioner's representative may issue
subpoenas for the attendance of any witnesses or the production of
any documents considered relevant to the investigation whether
under the control of the Commissioner
, the company or other
persons. The documents produced shall be included in the record
and testimony taken by the Commissioner
or the Commissioner's
representative shall be under oath and preserved for the record.
Nothing contained in this section shall require the Commissioner
to
disclose any information or records which would indicate or show
the existence or content of any investigation or activity of a
criminal justice agency;
(3) The hearing shall proceed with the Commissioner
or the
Commissioner's representative posing questions to the persons
subpoenaed. Thereafter, the company and the department may present testimony relevant to the investigation. Cross-examination may be
conducted only by the Commissioner
or the Commissioner's
representative. The company and the Commissioner
shall be
permitted to make closing statements and may be represented by
counsel of their choice.
(l) Adoption of the examination report shall be subject to the
following requirements:
(1) Upon the adoption of the examination report under
paragraph (A), subdivision (3), subsection (j) of this section, the
Commissioner
may continue to hold the content of the examination
report as private and confidential information for a period of
ninety days except to the extent provided in subdivision (6),
subsection (i) of this section. Thereafter, the Commissioner
may
open the report for public inspection so long as no court of
competent jurisdiction has stayed its publication;
(2) Nothing contained in this section may prevent or be
construed as prohibiting the Commissioner
from disclosing the
content of an examination report, preliminary examination report or
results or any matter relating thereto or the results of any
analysis or review to the insurance department of this or any other
state or country or to law-enforcement officials of this or any
other state or agency of the federal government at any time, so
long as the agency or office receiving the report or matters relating thereto agrees in writing to hold it confidential and in
a manner consistent with this section;
(3) In the event the Commissioner
determines that regulatory
action is appropriate as a result of any examination, analysis or
review, he or she may initiate any proceedings or actions as
provided by law;
(4) All working papers, recorded information, documents and
copies thereof produced by, obtained by or disclosed to the
Commissioner
or any other person in the course of an examination,
analysis or review made under this section must be given
confidential treatment and are not subject to subpoena and may not
be made public by the Commissioner
or any other person, except to
the extent provided in subdivision (5), subsection (i) of this
section. Access may also be granted in accordance with section
nineteen of this article. The parties must agree in writing prior
to receiving the information to provide to it the same confidential
treatment as required by this section unless the prior written
consent of the company to which it pertains has been obtained.
(m) The Commissioner
may require any examiner to furnish a
bond in such amount as Commissioner
may determine to be appropriate
and the bond shall be approved, filed and premium paid, with
suitable proof submitted to the Commissioner
, prior to commencement
of employment by the Commissioner
. No examiner may be appointed by the Commissioner
if the examiner, either directly or indirectly,
has a conflict of interest or is affiliated with the management of
or owns a pecuniary interest in any person subject to examination
under this section. This section shall not be construed to
automatically preclude an examiner from being:
(1) A policyholder or claimant under an insurance policy;
(2) A grantor of a mortgage or similar instrument on the
examiner's residence to a regulated entity if done under customary
terms and in the ordinary course of business;
(3) An investment owner in shares of regulated diversified
investment companies; or
(4) A settlor or beneficiary of a "blind trust" into which any
otherwise impermissible holdings have been placed;
(5) Notwithstanding the requirements of this subsection, the
Commissioner
may retain, from time to time, on an individual basis
qualified actuaries, certified public accountants or other similar
individuals who are independently practicing their professions even
though these persons may, from time to time, be similarly employed
or retained by persons subject to examination under this section.
(n) Personnel conducting examinations, analyses or reviews of
either a domestic, foreign or alien insurer shall be compensated
for each day worked at a rate set by the Commissioner
. The
personnel shall also be reimbursed for their travel and living expenses at the rate set by the Commissioner
. Other individuals
who are not employees of the Department of Insurance shall all be
compensated for their work, travel and living expenses at rates
approved by the Commissioner
or as otherwise provided by law. As
used in this section, the costs of an examination, analysis or
review means:
(1) The entire compensation for each day worked by all
personnel, including those who are not employees of the Department
of Insurance
, the conduct of the examination, analysis or review
calculated as hereinbefore provided;
(2) Travel and living expenses of all personnel, including
those who are not employees of the Department of Insurance
,
directly engaged in the conduct of the examination, analysis or
review calculated at the rates as hereinbefore provided for;
(3) All other incidental expenses incurred by or on behalf of
the personnel in the conduct of any authorized examination,
analysis or review.
(o) (1) All property and casualty insurers subject to the
provisions of this section shall annually pay to the Commissioner
on or before the first day of July, one thousand nine hundred
ninety-one, and every first day of July thereafter, an examination
assessment fee of eight hundred
section subsection,
increase this examination assessment fee or levy an additional
examination assessment fee of two hundred fifty dollars. In no
event may the total examination assessment fee, including any
additional examination assessment fee levied, exceed one five
thousand five hundred two hundred fifty
dollars per insurer in any
calendar year.
(2) All insurers other than property and casualty insurers
subject to the provisions of this section shall annually pay to the
Commissioner on or before the first day of July, one thousand nine
hundred ninety-one, and every first day of July thereafter, an examination assessment fee of eight hundred dollars. Four hundred
fifty dollars of this fee shall be paid to the Treasurer of the
state to the credit the Commissioner's Examination Revolving Fund
and three hundred fifty dollars shall be paid to the Treasurer of
the state. The Commissioner may at his or her discretion, upon
notice to the insurers subject to this subsection, increase this
examination assessment fee or levy an additional examination
assessment fee of two hundred fifty dollars. In no event may the
total examination assessment fee, including any additional
examination assessment fee levied, exceed one thousand five hundred
dollars per insurer in any calendar year.
(p) The moneys collected by the Commissioner
from an increase
or additional examination assessment fee shall be paid to the
Treasurer of the state
to be credited to the Commissioner's
Examination Revolving Fund. Any funds expended or obligated by the
Commissioner
from the Commissioner's Examination Revolving Fund may
be expended or obligated solely for defrayment of the costs of
examinations, analyses or reviews of the financial affairs and
business practices of insurance companies, agents, brokers, excess
lines brokers, solicitors or other individuals or corporations
transacting or attempting to transact an insurance business in this
state made by the Commissioner
pursuant to this section or for the
purchase of equipment and supplies, travel, education and training for the Commissioner's deputies, other employees and appointed
examiners necessary for the Commissioner
to fulfill the statutory
obligations created by this section.
(q) The Commissioner
may require other individuals who are not
employees of the Department of Insurance
who have been appointed by
the Commissioner
to conduct or participate in the examination,
analysis or review of insurers, agents, brokers, excess lines
brokers, solicitors or other individuals or corporations
transacting or attempting to transact an insurance business in this
state to:
(1) Bill and receive payments directly from the insurance
company being examined, analyzed or reviewed for their work, travel
and living expenses as previously provided for in this section; or
(2) If an individual agent, broker or solicitor is being
examined, analyzed or reviewed, bill and receive payments directly
from the Commissioner's Examination Revolving Fund for their work,
travel and living expenses as previously provided for in this
section. The Commissioner
may recover costs paid from the
Commissioner's Examination Revolving Fund pursuant to this
subdivision from the person upon whom the examination, analysis or
review is conducted.
(r) The Commissioner
and his or her examiners shall be
entitled to immunity to the following extent:
(1) No cause of action shall arise nor shall any liability be
imposed against the Commissioner
or his or her examiners for any
statements made or conduct performed in good faith while carrying
out the provisions of this section;
(2) No cause of action shall arise, nor shall any liability be
imposed, against any person for the act of communicating or
delivering information or data to the Commissioner
or his or her
examiners pursuant to an examination, analysis or review made under
this section if the act of communication or delivery was performed
in good faith and without fraudulent intent or the intent to
deceive;
(3) The Commissioner
or any examiner shall be entitled to an
award of attorney's fees and costs if he or she is the prevailing
party in a civil cause of action for libel, slander or any other
relevant tort arising out of activities in carrying out the
provisions of this section and the party bringing the action was
not substantially justified in doing so. For purposes of this
section, a proceeding is "substantially justified" if it had a
reasonable basis in law or fact at the time that it was initiated;
(4) This subsection does not abrogate or modify in any way any
constitutional immunity or common law or statutory privilege or
immunity heretofore enjoyed by any person identified in subdivision
(1) of this subsection.
§33-2-15d. Report to the Legislature.
(a) By the first day of January, two thousand seven, the
Commissioner shall submit a report to the Legislature. The report
shall contain analysis of the impact of legislation enacted during
the two thousand five regular legislative session upon rates and
insurance availability in the state.
(b) The Insurance Commissioner shall, by proposal of
legislative or procedural rules, pursuant to article three, chapter
twenty-nine-a of this code, put forth analytical criteria and
methodology of all factors to be considered in the report. This
purpose of this section is to assure that all relevant factors of
concern to the Legislature regarding the effect of the reforms
enacted in this article, any savings to consumers, the promotion of
insurance availability and impacts on insurance industry services
and performance are fully reviewed and addressed.
§33-2-16. Office of Consumer Advocacy established; Director of
Consumer Advocacy; promulgation of rules.
(a) There is hereby created within the agency of the Insurance
Commissioner the Office of Consumer Advocacy. The position of
Director of the Office of Consumer Advocacy shall be is a full-time
position. The Director shall be an attorney licensed in the State
of West Virginia. and The Director shall be appointed by the
commissioner Governor for a term of four years to coincide with the term of the Governor and may be discharged only for failure to
carry out the duties of the office or for other good and sufficient
cause: Provided, That the current Director of the Office of
Consumer Advocacy or other appointee of the Commissioner shall
continue in the position until the Governor appoints a new
Director.
(b) The Insurance Commissioner shall provide office space,
equipment and supplies for the office.
(c) The Director shall may promulgate rules pursuant to
article three, chapter twenty-nine-a of this code in order to
effect the purposes of this section and sections seventeen and
section eighteen of this article.
(d) On or before the first day of each regular session of the
Legislature, the Director shall file with the Governor, the Clerk
of the Senate and the Clerk of the House of Delegates a report
detailing the actions taken by the division in the preceding
calendar year.
§33-2-17. Office of Consumer Advocacy.
(a) In addition to the authority established under the rules
promulgated by the Director, the Office of Consumer Advocacy is
authorized to:
(1) Institute, intervene in or otherwise participate in, as an
advocate for the public interest and the interests of insurance consumers, proceedings in state and federal courts, before
administrative agencies or before the Health Care Cost Review
Authority concerning applications or proceedings before the Health
Care Cost Review Authority or the review of any act, failure to act
or order of the Health Care Cost Review Authority;
(2) At the request of one or more policyholders, or whenever
the public interest is served, to advocate the interests of those
policyholders in proceedings arising out of any filing made with
the Insurance Commissioner by any insurance company or relating to
any complaint alleging an unfair or deceptive act or practice in
the business of insurance;
(3)
At the request of one or more third-party claimant who
does not have legal representation at a hearing on his or her
claim, or whenever the public interest is served, to advocate the
interests of those third-party claimants in proceedings arising out
of any filing made with the Insurance Commissioner by any insurance
company or relating to any third-party complaint alleging an unfair
claims settlement practice
;
(3) (4)
Institute, intervene in or otherwise participate in,
as an advocate for the public interest and the interests of
insurance consumers, proceedings in state and federal courts,
before administrative agencies, or before the Insurance
Commissioner, concerning applications or proceedings before the Commissioner or the review of any act, failure to act or order of
the Insurance Commissioner;
(4) (5)
Review and compile information, data and studies of
the reasonable and customary rate schedules of health care
providers and health insurers for the purposes of reviewing,
establishing, investigating or supporting any policy regarding
health care insurance rates;
(5) (6)
Exercise all the same rights and powers regarding
examination and cross-examination of witnesses, presentation of
evidence, rights of appeal and other matters as any party in
interest appearing before the Insurance Commissioner or the Health
Care Cost Review Authority;
(6) (7)
Hire consultants, experts, lawyers, actuaries,
economists, statisticians, accountants, clerks, stenographers,
support staff, assistants and other personnel necessary to carry
out the provisions of this section and sections sixteen and
eighteen of this article, which personnel shall be paid from
special revenue funds appropriated for the use of the Office;
(7) (8)
Contract for the services of technically qualified
persons in the area of insurance matters to assist in the
preparation and presentation of matters before the courts, the
Insurance Commissioner, administrative agencies or the Health Care
Cost Review Authority, which persons shall be paid from special revenue funds appropriated for the use of the Office;
(8) (9)
Make recommendations to the Legislature concerning
legislation to assist the Office in the performance of its duties;
(9) (10)
Communicate and exchange data and information with
other federal or state agencies, divisions, departments, or
officers and with other interested parties, including, but not
limited to, health care providers, insurance companies, consumers
or other interested parties; and
(10) (11) Perform other duties to effect the purposes of the
Office.
(b) The provisions of this section do not apply to any filing
made by an insurance company or act or order performed or issued by
the Commissioner, or complaint filed by a policyholder with the
Commissioner prior to the thirtieth day of June, one thousand nine
hundred ninety-one. All proceedings and orders in connection with
these prior matters shall be governed by the law in effect at the
time of the filing, or performance or issuance of the act or order.
(c) Nothing in this section may be construed to authorize the
Director to participate in the review and consideration of any rate
filing made pursuant to this chapter.
(c) The scope of authority granted under this section and
section sixteen of this article is restricted to matters related to
health care costs and health insurance policies, subscriber contracts issued by organizations under article twenty-four of this
chapter, health care corporations under article twenty-five of this
chapter, health maintenance organizations under article
twenty-five-a of this chapter, contracts supplemental to health
insurance policies, and other matters related to health insurance
issues identified by rules of the commissioner promulgated under
section one of this article and chapter twenty-nine-a of this code.
ARTICLE 3. LICENSING, FEES & TAXATION OF INSURERS.
"§33-3-33. Surcharge on fire and casualty insurance policies to
benefit volunteer and part volunteer fire
departments; special fund created; allocation of
proceeds; effective date.
(a) (1) For the purpose of providing additional revenue for
volunteer fire departments, part-volunteer fire departments and
certain retired teachers and the Teachers Retirement Reserve Fund,
there is hereby authorized and imposed on and after the first day
of July, one thousand nine hundred ninety-two, on the policyholder
of any fire insurance policy or casualty insurance policy issued by
any insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to one percent of the taxable
premium for each such policy. After the thirtieth day of June, two
thousand five, the surcharge shall be imposed as specified in
subdivisions (2) and (3) of this subsection.
(2) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, for
the purpose of providing additional revenue for volunteer fire
departments, part-volunteer fire departments and to provide
additional revenue to the Public Employees Insurance Agency, there
is hereby authorized and imposed on and after the first day of
July, two thousand five, on the policyholder of any fire insurance
policy or casualty insurance policy issued by any insurer,
authorized or unauthorized, or by any risk retention group, a
policy surcharge equal to one percent of the taxable premium for
each such policy.
(3) After the thirty-first day of December, two thousand five,
for the purpose of providing additional revenue for volunteer fire
departments and part-volunteer fire departments, there is hereby
authorized and imposed on the policyholder of any fire insurance
policy or casualty insurance policy issued by any insurer,
authorized or unauthorized, or by any risk retention group, a
policy surcharge equal to fifty-five hundredths of one percent of
the taxable premium for each such policy.
(4) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming due on a specific loan or other credit transaction while the debtor
is disabled as defined in the policy. The policy surcharge may not
be subject to premium taxes, agent commissions or any other
assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the Commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is issued
by a risk retention group, by the risk retention group. The amount
required to be collected under this section shall be remitted to
the Commissioner on a quarterly basis on or before the twenty-fifth
day of the month succeeding the end of the quarter in which they
are collected, except for the fourth quarter for which the
surcharge shall be remitted on or before the first day of March of
the succeeding year.
(c) Any person failing or refusing to collect and remit to the
Commissioner any policy surcharge and whose surcharge payments are
not postmarked by the due dates for quarterly filing is liable for
a civil penalty of up to one hundred dollars for each day of
delinquency to be assessed by the Commissioner. The Commissioner
may suspend the insurer, broker or risk retention group until all
surcharge payments and penalties are remitted in full to the
Commissioner.
(d) (1)
One half of all
money from the policy surcharge shall be collected by the Commissioner who shall disburse the money
received from the surcharge into a special account in the State
Treasury, designated the "Fire Protection Fund". The net proceeds
of this portion of the tax and the interest thereon, after
appropriation by the Legislature, shall be distributed quarterly on
the first day of the months of January, April, July and October to
each volunteer fire company or department on an equal share basis
by the State Treasurer. The remaining fifty percent of the moneys
collected shall be transferred to the Teachers Retirement System to
be disbursed according to the provisions of sections twenty-six-j,
twenty-six-k and twenty-six-l, article seven-a, chapter eighteen of
this code. Any balance remaining after the disbursements
authorized by this subdivision have been paid shall be paid by the
Teachers Retirement System into the Teachers Retirement System
Reserve Fund. After the thirtieth day of June, two thousand five,
the money received from the surcharge shall be distributed as
specified in subdivisions (2) and (3) of this subsection.
(2) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, all
money from the policy surcharge shall be collected by the
Commissioner who shall disburse one half of the money received from
the surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection. The remaining portion of moneys collected shall be transferred into the fund in
the State Treasury of the Public Employees Insurance Agency into
which are deposited the proportionate shares made by agencies of
this state of the Public Employees Insurance Agency costs of those
agencies.
(3) After the thirty-first day of December, two thousand five,
all money from the policy surcharge shall be collected by the
Commissioner who shall disburse all of the money received from the
surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection.
(1) (4) Before each distribution date to volunteer fire
companies or departments, the State Fire Marshal shall report to
the State Treasurer the names and addresses of all volunteer and
part-volunteer fire companies and departments within the state
which meet the eligibility requirements established in section
eight-a, article fifteen, chapter eight of this code.
(2) The remaining fifty percent of the moneys collected shall
be transferred to the teachers retirement system to be disbursed
according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code.
Any balance remaining after the disbursements authorized by this
subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund.
(e) The allocation, distribution and use of revenues provided
in the Fire Protection Fund are subject to the provisions of
sections eight-a and eight-b, article fifteen, chapter eight of
this code.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-15a. Notation of consumer cost savings.
Each policy issued following enactment of this provision
during the two thousand five regular session, during the year
following the effective date, shall display in a prominent location
on the policy itself or on an insert included with each policy and
provided to each policyholder, statements as following:
(1) "YOUR COSTS FOR THIS POLICY (HAVE/HAVE NOT) BEEN REDUCED
BY (insert savings amount here) BECAUSE OF CIVIL JUSTICE REFORMS
ENACTED BY THE WEST VIRGINIA LEGISLATURE IN 2005 AND SIGNED INTO
LAW BY THE GOVERNOR"; and
(2) "YOUR COST FOR THIS POLICY HAS BEEN REDUCED BY (insert
savings amount here) BECAUSE OF PREMIUM SURCHARGE REDUCTIONS
ENACTED BY THE WEST VIRGINIA LEGISLATURE IN 2005 AND SIGNED INTO
LAW BY THE GOVERNOR".
If the insurer did not offer the type of insurance provided
by the policy in two thousand four, the requirement for these
statements do not apply.
ARTICLE 11. UNFAIR TRADE PRACTICES.
§33-11-4a. Complaints by third-party claimants; elimination of
private cause of action.
(a) A third-party claimant may not bring a private cause of
action or any other action against any person for an unfair claims
settlement practice. A third-party claimant's sole remedy against
a person for an unfair claims settlement practice or the bad faith
settlement of a claim is the filing of an administrative complaint
with the Commissioner in accordance with subsection (b) of this
section. A third-party claimant may not include allegations of
unfair claims settlement practices in any underlying litigation
against an insured.
(b) A third-party claimant may file an administrative
complaint against a person for an alleged unfair claims settlement
practice with the Commissioner. The administrative complaint shall
be filed as soon as practicable but in no event later than one year
following the actual or implied discovery of the alleged unfair
claims settlement practice.
(1) The administrative complaint shall be on a form provided
by the Commissioner and shall state with specificity the following
information and such other information as the Commissioner may
require:
(A) The statutory provision, if known, which the person
allegedly violated;
(B) The facts and circumstances giving rise to the violation;
(C) The name of any individual or other entity involved in the
violation; and
(D) Reference to specific policy language that is relevant to
the violation, if known.
(2) If the administrative complaint is deficient, the
Commissioner shall contact the third-party claimant within fifteen
days of receipt of the complaint to obtain the necessary
information.
(3) Upon receipt of a sufficiently complete administrative
complaint, the Commissioner must provide the person against whom
the administrative complaint is filed written notice of the alleged
violation.
(4) If the person against whom the administrative complaint
was filed substantially corrects the circumstances that gave rise
to the violation
or offers to resolve the complaint in a manner
found reasonable by the Commissioner within sixty days after
receiving the notice from the Commissioner pursuant to subdivision
(3) of this subsection, the Commissioner shall close the complaint
and no further action shall lie on the matter, either by the
Commissioner or by the third party.
(5) The person that is the recipient of a notice from the
Commissioner pursuant to subdivision (3) of this subsection shall report to the Commissioner on the disposition of the alleged
violation within fifteen days of the disposition but no later than
sixty days from receipt of notice of the complaint from the
Commissioner.
(c) If the third-party claim is not resolved within the sixty-
day period described in subdivision (4), subsection (b) of this
section through either the person's substantial correction of the
circumstances giving rise to the alleged violation or an offer from
the person to resolve the administrative complaint that is found to
be reasonable by the Commissioner, the Commissioner shall conduct
any investigation he or she considers necessary to determine
whether the allegations contained in the administrative complaint
are meritorious.
(d) Following the time period and investigation provided in
subsection (c) of this section, if the Commissioner finds that
merit exists for a complaint and the complaint has not been
resolved, the Commissioner shall forward a complete
copy of the
complaint to the Office of Consumer Advocacy and, if at his or her
discretion, may order further investigation and hearing to
determine if the person has committed an unfair claims settlement
practice with such frequency as to constitute a general business
practice.
Notice of any hearing shall be provided to all parties.
T
he Commissioner
shall assign a time and place for a hearing and shall notify the parties of the hearing by written notice at least
ten days in advance thereof. The hearing shall be held within
ninety days from the date of filing the complaint unless the
complaint has been successfully resolved pursuant to subdivision
(4), subsection (b) of this section, or continued by agreement of
all parties or by the Commissioner for good cause. The
Commissioner shall cause hearings to be conducted in the
geographical region of the state where the complainant resides.
The Commissioner may promulgate rules pursuant to article three,
chapter twenty-nine-a of this code necessary pursuant to the
authority of this chapter to establish procedures to conduct
hearings pursuant to this section and chapter.
(e) If the Commissioner finds that the person has committed
the unfair claim settlement practice with such frequency as to
constitute a general business practice, the Commissioner may
proceed to take administrative action he or she considers
appropriate in accordance with section six of this article or as
otherwise provided in this chapter. If the Commissioner finds that
the person engaged in any method of competition, act or practice
that involves an intentional violation of subdivision (9), section
four of this article and even though it has not been established
that the person engaged in a general business practice, the
Commissioner may proceed to take administrative action he or she considers appropriate in accordance with subsection (b), section
six of this article.
The person is entitled to notice and hearing
in connection with the administrative proceeding.
(f) A finding by the Commissioner that the actions of a person
constitute a general business practice may only be based on the
existence of substantially similar violations in a number of
separate claims or causes of action.
(g) A good faith disagreement over the value of an action or
claim or the liability of any party to any action or claim is not
an unfair claims settlement practice.
(h) The Commissioner, pursuant to article three, chapter
twenty-nine-a of this code, may promulgate by emergency rule
standards for subsection (9), section four of this article.
(i) Nothing in this section in any way limits the rights of
the Commissioner to investigate and take action against a person
which the Commissioner has reason to believe has committed an
unfair claims settlement practice or has consistently resolved
administrative complaints by third-party claimants within the
sixty-day period set forth in subdivision (4), subsection (b) of
this section.
(j) Definitions. -
(1) "Third-party claimant" means any individual, corporation,
association, partnership or any other legal entity asserting a claim against any individual, corporation, association, partnership
or other legal entity insured under an insurance policy or
insurance contract for the claim in question.
(2) "Unfair claims settlement practice" means a violation of
subsection (9), section four of this article.
(3) "Underlying litigation" means a third-party claimant's
lawsuit involving a claim against an insured.
(4) "Underlying claim" means the claim by a third-party
claimant against an insured.
§33-11-4b. Unfair Claims Settlement Practice Trust Fund.
(a) There is hereby created a special account in the state
treasury, designated the "Unfair Claims Settlement Practice 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 or other
refund earned thereon, a proper credit to the fund. Funds paid
into the account may also be derived from the following sources:
(1) Payments received pursuant to section nine, article two of
this chapter; and
(2) Any appropriations by the Legislature which may be made
for this purpose.
(b) The moneys from the principal in the fund shall be
expended by the Commissioner to compensate claimants as provided in section four-a and six of this article.
§33-11-6. Violations, cease and desist and penalty orders and
modifications thereof.
If, after notice and hearing, the Commissioner determines that
any person has engaged in or is engaging in any method of
competition, act or practice in violation of the provisions of this
article or any rules or regulations promulgated by the Commissioner
thereunder, the Commissioner shall issue an order directing such
the person to cease and desist from engaging in such the method of
competition, act or practice and, in addition thereto, the
Commissioner may at his or her discretion order any one or more of
the following:
(a) Require the payment to the State of West Virginia of a
penalty in a sum not exceeding one thousand dollars for each and
every act or violation, but not to exceed an aggregate penalty of
ten thousand dollars, unless the person knew or reasonably should
have known he or she was in violation of this article, in which
case the penalty shall be not more than exceed five thousand
dollars for each and every act or violation, but not to exceed an
aggregate penalty of fifty one hundred thousand dollars in any six-
month period.
(b) In the event the act involves an intentional violation of
subdivision (9), section four of this article, and even though it has not been established that the person engaged in a general
business practice, require the payment to the State of West
Virginia of a penalty in a sum not to exceed ten thousand dollars.
(c) Require the payment to the State of West Virginia of a
penalty in a sum not exceeding two hundred fifty thousand dollars
if the Commissioner finds that the insurer committed or performed
unfair claims settlement practices with such frequency as to
indicate a general business practice.
(b) (d) Revoke or suspend the license of such any person if he
or she knew, or reasonably should have known, that he or she was in
violation of this article.
(e) Provide restitution from the Unfair Claims Settlement
Practice Trust Fund to a claimant who has suffered damages as a
result of a general business practice
or from an egregious act by
a person whether or not the act constituted a pattern corresponding
to an unfair claim settlement practice committed with such
frequency as to constitute a general business practice
.
Restitution provided herein may include: (1) Actual economic
damages; and (2) noneconomic damages not to exceed ten thousand
dollars. Restitutions may not be given for attorney fees and
punitive damages.
(f) It is expressly understood and intended that the
provisions of subsection (e)(1) of this section do not create a private cause of action against the person that has committed an
unfair claims settlement practice. In the event that any provision
of subsection (e)(1) is found to be unconstitutional or is deemed
by any court of competent jurisdiction to create a private cause of
action, then subsection (e) shall be void.
(g) Any person aggrieved by an order of the Commissioner under
this article may seek judicial review of the order as provided in
section fourteen, article two of this chapter.
(c) (h) No order of the Commissioner pursuant to this article
or order of any court to enforce it, or holding of a hearing, shall
in any manner relieve or absolve any person affected by such the
order or hearing from any other liability, penalty or forfeiture
under law.
(i) The provisions of section four-a of this article and
subsection (e) of this section do not apply to medical professional
liability insurance claims pursuant to article seven-b chapter
fifty-five of this code and workers' compensation insurance
policies governed by article two-c, chapter twenty three of this
code.
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-4a. Biannual rate filings for certain insurance lines.
On or before the first day of July, two thousand five, the
Commissioner shall promulgate legislative rules pursuant to article three, chapter twenty-nine-a of this code establishing procedures
whereby each insurer providing five percent or more of insurance
coverage in this state for private passenger automobile insurance
and property insurance obtained for personal or family needs shall
biannually submit rate filings required under this section:
Provided, That the requirements under this subsection shall
terminate on the first day of July, two thousand nine.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 418--A Bill
to
amend and
reenact §33-2-9, §33-2-16 and §33-2-17 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a
new section, designated §33-2-15d; to amend and reenact §33-3-33 of
said code; to amend said code by adding thereto a new section,
designated §33-6-15a
; to amend said code by adding thereto two new
sections, designated §33-11-4a and §33-11-4b; to amend and reenact
§33-11-6 of said code; and to amend said code by adding thereto a
new section, designated §33-20-4a, all relating generally to the
regulation of insurance; increasing certain fees for property and
casualty insurers; limiting these certain fees upon meeting special
fund funding threshold; providing that Insurance Commissioner shall
conduct a study and promulgate rules relating thereto; providing that the Director of Consumer Advocacy be appointed by the
Governor; requiring that the Director of Consumer Advocacy be a
licensed lawyer; expanding the authority of the Office of Consumer
Advocacy; reducing a surcharge on fire and casualty insurance
polices; modifying distribution of surcharge; providing for notice
of savings in certain insurance policies;
eliminating a cause of
action for unfair claims settlement practices by third parties;
establishing procedures for the filing, investigation and
processing of administrative complaints by third-party claimants;
defining certain terms; establishing special account to award
restitution; providing for limited administrative restitution to
third-party claimants in certain circumstances; providing for
penalties for engaging in unfair claims settlement practices or
general business practices; providing a internal contingent voiding
provision; providing for judicial review of administrative process;
limiting applicability of act; and establishing that certain
insurers shall submit rate filings biannually.
On motion of Senator Minard, the following amendment to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 418) was reported by the Clerk and adopted:
On pages twenty-four through twenty-eight, by striking out all
of section thirty-three and inserting in lieu thereof a new section
thirty-three, to read as follows:
§33-3-33. Surcharge on fire and casualty insurance policies to
benefit volunteer and part-volunteer fire departments; Public
Employees Insurance Agency and municipal pension plans;
special fund created; allocation of proceeds; effective date.
(a) (1) For the purpose of providing additional revenue for
volunteer fire departments, part-volunteer fire departments and
certain retired teachers and the Teachers Retirement Reserve Fund,
there is hereby authorized and imposed on and after the first day
of July, one thousand nine hundred ninety-two, on the policyholder
of any fire insurance policy or casualty insurance policy issued by
any insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to one percent of the taxable
premium for each such policy. After the thirtieth day of June, two
thousand five, the surcharge shall be imposed as specified in
subdivisions (2) and (3) of this subsection.
(2) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, for
the purpose of providing additional revenue for volunteer fire
departments, part-volunteer fire departments and to provide
additional revenue to the Public Employees Insurance Agency and
municipal pension plans, there is hereby authorized and imposed on
and after the first day of July, two thousand five, on the
policyholder of any fire insurance policy or casualty insurance policy issued by any insurer, authorized or unauthorized, or by any
risk retention group, a policy surcharge equal to one percent of
the taxable premium for each such policy.
(3) After the thirty-first day of December, two thousand five,
for the purpose of providing additional revenue for volunteer fire
departments and part-volunteer fire departments, there is hereby
authorized and imposed on the policyholder of any fire insurance
policy or casualty insurance policy issued by any insurer,
authorized or unauthorized, or by any risk retention group, a
policy surcharge equal to fifty-five one thousandths of one percent
of the taxable premium for each such policy.
(4) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the debtor
is disabled as defined in the policy. The policy surcharge may not
be subject to premium taxes, agent commissions or any other
assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the Commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is issued
by a risk retention group, by the risk retention group. The amount required to be collected under this section shall be remitted to
the Commissioner on a quarterly basis on or before the twenty-fifth
day of the month succeeding the end of the quarter in which they
are collected, except for the fourth quarter for which the
surcharge shall be remitted on or before the first day of March of
the succeeding year.
(c) Any person failing or refusing to collect and remit to the
Commissioner any policy surcharge and whose surcharge payments are
not postmarked by the due dates for quarterly filing is liable for
a civil penalty of up to one hundred dollars for each day of
delinquency to be assessed by the Commissioner. The Commissioner
may suspend the insurer, broker or risk retention group until all
surcharge payments and penalties are remitted in full to the
Commissioner.
(d) (1) All money from the policy surcharge shall be collected
by the Commissioner who shall disburse the money received from the
surcharge into a special account in the State Treasury, designated
the "Fire Protection Fund". The net proceeds of this portion of
the tax and the interest thereon, after appropriation by the
Legislature, shall be distributed quarterly on the first day of the
months of January, April, July and October to each volunteer fire
company or department on an equal share basis by the State
Treasurer. After the thirtieth day of June, two thousand five, the money received from the surcharge shall be distributed as specified
in subdivisions (2) and (3) of this subsection.
(2) (A) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, all
money from the policy surcharge shall be collected by the
Commissioner who shall disburse one half of the money received from
the surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection.
(B) The remaining portion of moneys collected shall be
transferred into the fund in the State Treasury of the Public
Employees Insurance Agency into which are deposited the
proportionate shares made by agencies of this state of the Public
Employees Insurance Agency costs of those agencies, until the first
day of November, two thousand five. After the thirty-first day of
October, two thousand five, through the thirty-first day of
December, two thousand five, the remaining portion shall be
transferred to the special account in the State Treasury, known as
the Municipal Pensions and Protection Fund.
(3) After the thirty-first day of December, two thousand five,
all money from the policy surcharge shall be collected by the
Commissioner who shall disburse all of the money received from the
surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection.
(1) (4) Before each distribution date to volunteer fire
companies or departments, the State Fire Marshal shall report to
the State Treasurer the names and addresses of all volunteer and
part-volunteer fire companies and departments within the state
which meet the eligibility requirements established in section
eight-a, article fifteen, chapter eight of this code.
(2) The remaining fifty percent of the moneys collected shall
be transferred to the teachers retirement system to be disbursed
according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code.
Any balance remaining after the disbursements authorized by this
subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund.
(e) The allocation, distribution and use of revenues provided
in the Fire Protection Fund are subject to the provisions of
sections eight-a and eight-b, article fifteen, chapter eight of
this code.
On motion of Senator Minard, the following amendment to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 418) was next reported by the Clerk and adopted:
On page twenty-seven, section thirty-three, subsection (d),
subdivision (2), by striking out the following: "(A) After the
thirtieth day of June, two thousand five, through the thirty-first day of December, two thousand five, all money from the policy
surcharge shall be collected by the Commissioner who shall disburse
one half of the money received from the surcharge into the 'Fire
Protection Fund' for distribution as provided in subdivision (1) of
this subsection." and inserting in lieu thereof the following:
From the thirtieth day of June, two thousand five, to the first day
of November, two thousand five, all money from the policy surcharge
shall be collected by the Commissioner who shall disburse one half
of the money received from the surcharge into the "Fire Protection
Fund" for distribution as provided in subdivision (1) of this
subsection. From the first day of November through the thirty-
first day of December, two thousand five, all money from the policy
surcharge shall be collected by the Commissioner who shall disburse
one half of the money received from the surcharge into the special
account created in subsection (h), section nine, article three,
chapter twenty-nine of this code to be distributed proportionate to
the number of respective employees to all paid fire departments of
the state.
On motion of Senator Minard, the following amendment to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 418) was next reported by the Clerk and adopted:
On page thirty-six, section six, by striking out all of
subdivision (e) and inserting in lieu thereof a new subdivision (e), to read as follows:
(e) (1) Provide restitution from the Unfair Claims Settlement
Practice Trust Fund to a claimant who has suffered damages as a
result of a general business practice or from an egregious act by
a person whether or not the act constituted a pattern corresponding
to an unfair claim settlement practice committed with such
frequency as to constitute a general business practice.
(2) Restitution provided herein may include: (A) Actual
economic damages; and (B) noneconomic damages not to exceed ten
thousand dollars. Restitution may not be given for attorney fees
and punitive damages.
On motion of Senator Minard, the following amendments to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 418) were next reported by the Clerk and adopted:
On page thirty-six, section six, line twenty-two, by striking
out the word "subsection" and inserting in lieu thereof the word
"subdivision";
And,
On page thirty-six, section six, line twenty-five, by striking
out the word "subsection" and inserting in lieu thereof the word
"subdivision".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 418, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Deem, Edgell, Facemyer, Fanning, Foster, Guills,
Harrison, Helmick, Jenkins, Lanham, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks
and Tomblin (Mr. President)--27.
The nays were: Bowman, Chafin, Dempsey, Hunter, Kessler,
White and Yoder--7.
Absent: None.
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. 418) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 421, Relating to apportionment of damages
in court actions involving tortious conduct in certain cases.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-23. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of
more than one defendant, the trial court shall:
(1) Instruct the jury to determine or, if there is no jury,
find the total amount of damages sustained by the claimant and the
proportionate fault of each of the parties in the litigation at the
time the verdict is rendered, enter judgment against each defendant
found to be liable on the basis of the rules of joint and several
liability and divide the damage allocation between actual, economic
damages and noneconomic damages. All defendants shall be jointly
and several liable for all actual, economic damages.
(2) For noneconomic damages, judgment against each defendant
found to be liable on the basis of the rules of joint and several
liability, except that if any defendant is thirty-five percent or
less at fault, then that defendant's liability shall be several and
not joint and he or she shall be liable only for the noneconomic
damages attributable to him or her, except as otherwise provided in this section.
(b) Notwithstanding subdivision (2), subsection (a) of this
section, the rules of joint and several liability all damages shall
apply to:
(1) Any party who acted with the intention of inflicting
injury or damage;
(2) Any party who acted in concert with another person as part
of a common plan or design resulting in harm;
(3) Any party who negligently or willfully caused the unlawful
emission, disposal or spillage of a toxic or hazardous substance;
(4) Any party strictly liable for the manufacture and sale of
a defective product; or
(5) Any party who negligently, unlawfully or recklessly sold
or served alcohol.
(c) Notwithstanding subdivision (2), subsection (a) of this
section, if a claimant, through good faith efforts, is unable to
collect from a liable defendant, the claimant may, not later than
six months after judgment becomes final through lapse of time for
appeal or through exhaustion of appeal, whichever occurs later,
move for reallocation of any uncollectible amount of damages among
the other parties in the litigation at the time the verdict is
rendered.
(1) Upon the filing of such a motion, the court shall determine whether all or part of a defendant's proportionate share
of the verdict for noneconomic damages is uncollectible from that
defendant and shall reallocate such uncollectible amount among the
other parties in the litigation at the time the verdict is
rendered, including a claimant at fault according to their
percentages of fault: Provided, That the court shall not
reallocate to any defendant an uncollectible amount of noneconomic
damages greater than that defendant's percentage of fault
multiplied by such uncollectible amount.
(2) If such a motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
motion.
(3) Any order regarding such motion shall be entered within
one hundred twenty days after the date of filing such a motion.
(4) A defendant's share of the obligation for noneconomic
damages to a claimant may not be increased by reason of
reallocation under this subsection if:
(A) The percentage of fault of that defendant is equal to or
less than the claimant's percentage of fault; or
(B) The percentage of fault of that defendant is seven percent
or less.
(5) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the claimant on the judgment.
(6) If any defendant's share of the obligation for noneconomic
damages to a claimant is not increased by reason of the application
of subdivision (4) of this subsection, the amount of that
defendant's share of the reallocation shall be considered
uncollectible and shall be reallocated among all other parties who
are not subject to subdivision four of this subsection, including
the claimant, in the same manner as otherwise provided this
subsection.
(d) Nothing in this section may be construed to affect, impair
or abrogate any right of indemnity or contribution arising out of
any contract or agreement or any right of indemnity otherwise
provided by law.
(e) Nothing in this section creates or recognizes, either
explicitly or impliedly, any new or different cause of action not
otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair
or abrogate the provisions of section seven, article twelve-a,
chapter twenty-nine of this code or section nine, article seven-b
of this chapter.
(g) This section applies only to causes of action that accrue
on or after the first day of July, two thousand five.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 421--A Bill
to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §55-7-23, relating to the apportionment of certain
damages in court actions involving the tortious conduct of more
than one person; allowing for several liability for certain
defendants for noneconomic damages; allowing for several liability
subject to reallocation for certain defendants; providing
procedures for determining allocation; and providing for joint and
several liability for defendants that are found to be more than
thirty-five percent at fault in certain conditions.
On motion of Senator Minard, the following amendments to the
House of Delegates amendments to the bill (Eng. S. B. No. 421) were
reported by the Clerk and adopted:
On page two, by striking out everything after the article
heading and inserting in lieu thereof the following:
§55-7-23. Apportionment of damages.
(a) In any cause of action involving the tortious conduct of
more than one defendant, the trial court shall:
(1) Instruct the jury to determine or, if there is no jury,
find the total amount of damages sustained by the claimant and the
proportionate fault of each of the parties in the litigation at the time the verdict is rendered; and
(2) Enter judgment against each defendant found to be liable
on the basis of the rules of joint and several liability, except
that if any defendant is twenty-five thirty percent or less at
fault, then that defendant's liability shall be several and not
joint and he or she shall be liable only for the damages
attributable to him or her, except as otherwise provided in this
section.
(b) Notwithstanding subdivision (2), subsection (a) of this
section, the rules of joint and several liability shall apply to:
(1) Any party who acted with the intention of inflicting
injury or damage;
(2) Any party who acted in concert with another person as part
of a common plan or design resulting in harm;
(3) Any party who negligently or willfully caused the unlawful
emission, disposal or spillage of a toxic or hazardous substance;
or
(4) Any party strictly liable for the manufacture and sale of
a defective product.
(c) Notwithstanding subdivision (2), subsection (a) of this
section, if a claimant, through good faith efforts, is unable to
collect from a liable defendant, the claimant may, not later than
six months after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later,
move for reallocation of any uncollectible amount among the other
parties in the litigation at the time the verdict is rendered.
(1) Upon the filing of such a motion, the court shall
determine whether all or part of a defendant's proportionate share
of the verdict is uncollectible from that defendant and shall
reallocate such uncollectible amount among the other parties in the
litigation at the time the verdict is rendered, including a
claimant at fault according to their percentages of fault:
Provided, That the court shall not reallocate to any defendant an
uncollectible amount greater than that defendant's percentage of
fault multiplied by such uncollectible amount.
(2) If such a motion is filed, the parties may conduct
discovery on the issue of collectability prior to a hearing on such
motion.
(3) Any order regarding such motion shall be entered within
one hundred twenty days after the date of filing such a motion.
(4) A defendant's share of the obligation to a claimant may
not be increased by reason of reallocation under this subsection
if:
(A) The percentage of fault of that defendant is equal to or
less than the claimant's percentage of fault; or
(B) The percentage of fault of that defendant is less than ten percent.
(5) A party whose liability is reallocated is nonetheless
subject to contribution and to any continuing liability to the
claimant on the judgment.
(6) If any defendant's share of the obligation to a claimant
is not increased by reason of the application of subdivision (4) of
this subsection, the amount of that defendant's share of the
reallocation shall be considered uncollectible and shall be
reallocated among all other parties who are not subject to said
subdivision, including the claimant, in the same manner as
otherwise provided this subsection.
(d) Nothing in this section may be construed to affect, impair
or abrogate any right of indemnity or contribution arising out of
any contract or agreement or any right of indemnity otherwise
provided by law.
(e) Nothing in this section creates or recognizes, either
explicitly or impliedly, any new or different cause of action not
otherwise recognized by law.
(f) Nothing in this section may be construed to affect, impair
or abrogate the provisions of section seven, article twelve-a,
chapter twenty-nine of this code or section nine, article seven-b
of this chapter.
(g) This section applies only to causes of action that accrue on or after the first day of July, two thousand five.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 421--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §55-7-23, relating to the apportionment of damages in
court actions involving the tortious conduct of more than one
person; allowing for several liability for certain defendants;
allowing for several liability subject to reallocation for certain
defendants; and providing for several liability for defendants that
are found to be less than thirty percent at fault under certain
circumstances.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 421, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 421) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 514, Increasing salaries of
certain state officials, justices, circuit judges and family court
judges.
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 four, after section two, by inserting the following:
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-3. Salaries of magistrates.
(a) The Legislature finds and declares that:
(1) The West Virginia Supreme Court of Appeals has held that
a salary system for magistrates which is based upon the population
that each magistrate serves does not violate the equal protection
clause of the Constitution of the United States;
(2) The West Virginia Supreme Court of Appeals has held that
a salary system for magistrates which is based upon the population
that each magistrate serves does not violate section thirty-nine,
article VI of the Constitution of West Virginia;
(3) The utilization of a two-tiered salary schedule for
magistrates is an equitable and rational manner by which
magistrates should be compensated for work performed;
(4) Organizing the two tiers of the salary schedule into one
tier for magistrates serving less than eight thousand four hundred
in population and the second tier for magistrates serving eight
thousand four hundred or more in population is rational and
equitable given current statistical information relating to
population and caseload; and
(5) That all magistrates who fall under the same tier should
be compensated equally.
(b) The salary of each magistrate shall be paid by the state.
Magistrates who serve fewer than eight thousand four hundred in
population shall be paid annual salaries of thirty thousand six hundred twenty-five dollars and magistrates who serve eight
thousand four hundred or more in population shall be paid annual
salaries of thirty-seven thousand dollars: Provided, That on and
after the first day of July, two thousand three, magistrates who
serve fewer than eight thousand four hundred in population shall be
paid annual salaries of thirty-three thousand six hundred
twenty-five dollars and magistrates who serve eight thousand four
hundred or more in population shall be paid annual salaries of
forty thousand dollars: Provided, however, That on and after the
first day of July, two thousand five, magistrates who serve fewer
than eight thousand four hundred in population shall be paid annual
salaries of forty-three thousand six hundred twenty-five dollars
and magistrates who serve eight thousand four hundred or more in
population shall be paid annual salaries of fifty thousand dollars.
(c) For the purpose of determining the population served by
each magistrate, the number of magistrates authorized for each
county shall be divided into the population of each county. For
the purpose of this article, the population of each county is the
population as determined by the last preceding decennial census
taken under the authority of the United States government.;
On page six, section six, line ten, by striking out the word
"seventy-five" and inserting in lieu thereof the word "eighty-two";
On page two, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as
follows:
That §6-7-2 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §50-1-3 of said code be amended and
reenacted
; that §51-1-10a of said code be amended and reenacted;
that §51-2-13 of said code be amended and reenacted; and that §51-
2A-6 of said code be amended and reenacted, all to read as
follows:
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 514--A Bill to amend and
reenact §6-7-2 of the Code of West Virginia, 1931, as amended; to
amend and reenact §50-1-3 of said code; to amend and reenact §51-1-
10a of said code; to amend and reenact §51-2-13 of said code; and
to amend and reenact §51-2A-6 of said code, all relating generally
to the salaries of the Governor, Attorney General, State Treasurer,
State Auditor, Commissioner of Agriculture, Secretary of State,
Supreme Court Justices, judges of circuit courts, family court
judges and magistrates; and effective dates.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 514, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster,
Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe,
McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse,
Unger, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Harrison, Minear and Weeks--5.
Absent: None.
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. 514) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Bowman, Caruth,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills,
Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White,
Yoder and Tomblin (Mr. President)--29.
The nays were: Barnes, Boley, Harrison, Minear and Weeks--5.
Absent: None.
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. 514) takes effect July 1, 2005.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 741, Exempting farming equipment and
livestock from personal property tax.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. ASSESSMENTS GENERALLY.
§11-3-9. Property exempt from taxation.
(a) All property, real and personal, described in this
subsection, and to the extent herein limited, is exempt from
taxation:
(1) Property belonging to the United States, other than
property permitted by the United States to be taxed under state
law;
(2) Property belonging exclusively to the state;
(3) Property belonging exclusively to any county, district,
city, village or town in this state, and used for public purposes;
(4) Property located in this state, belonging to any city,
town, village, county or any other political subdivision of another
state, and used for public purposes;
(5) Property used exclusively for divine worship;
(6) Parsonages and the household goods and furniture
pertaining thereto;
(7) Mortgages, bonds and other evidence of indebtedness in the
hands of bona fide owners and holders hereafter issued and sold by
churches and religious societies for the purposes of securing money
to be used in the erection of church buildings used exclusively for
divine worship, or for the purpose of paying indebtedness thereon;
(8) Cemeteries;
(9) Property belonging to, or held in trust for, colleges,
seminaries, academies and free schools, if used for educational,
literary or scientific purposes, including books, apparatus,
annuities and furniture;
(10) Property belonging to, or held in trust for, colleges or
universities located in West Virginia, or any public or private
nonprofit foundation or corporation which receives contributions
exclusively for such college or university, if the property or
dividends, interest, rents or royalties derived therefrom are used or devoted to educational purposes of such college or university;
(11) Public and family libraries;
(12) Property used for charitable purposes and not held or
leased out for profit;
(13) Property used for the public purposes of distributing
water or natural gas, or providing sewer service by a duly
chartered nonprofit corporation when such property is not held,
leased out or used for profit;
(14) Property used for area economic development purposes by
nonprofit corporations when such property is not leased out for
profit;
(15) All real estate not exceeding one acre in extent, and the
buildings thereon, used exclusively by any college or university
society as a literary hall, or as a dormitory or clubroom, if not
used with a view to profit, including, but not limited to, property
owned by a fraternity or sorority organization affiliated with a
university or college, or property owned by a nonprofit housing
corporation or similar entity on behalf of a fraternity or sorority
organization affiliated with a university or college, when the
property is used as residential accommodations, or as a dormitory
for members of the organization;
(16) All property belonging to benevolent associations, not
conducted for private profit;
(17) Property belonging to any public institution for the
education of the deaf, dumb or blind or any hospital not held or
leased out for profit;
(18) Houses of refuge and mental health facility or orphanage
facilities or orphanages;
(19) Homes for children or for the aged, friendless or infirm,
not conducted for private profit;
(20) Fire engines and implements for extinguishing fires, and
property used exclusively for the safekeeping thereof, and for the
meeting of fire companies;
(21) All property on hand to be used in the subsistence of
livestock on hand at the commencement of the assessment year;
(22) Household goods to the value of two hundred dollars,
whether or not held or used for profit;
(23) Bank deposits and money;
(24) Household goods, which for purposes of this section means
only personal property and household goods commonly found within
the house and items used to care for the house and its surrounding
property, when not held or used for profit;
(25) Personal effects, which for purposes of this section
means only articles and items of personal property commonly worn on
or about the human body, or carried by a person and normally
thought to be associated with the person when not held or used for profit;
(26) Dead victuals laid away for family use; and
(27) All property belonging to the state, any county,
district, city, village, town or other political subdivision, or
any state college or university which is subject to a lease-
purchase agreement and which provides that, during the term of the
lease-purchase agreement, title to the leased property rests in the
lessee so long as lessee is not in default or shall not have
terminated the lease as to the property;
(28) Personal property, including livestock, employed
exclusively in agriculture, as defined in article ten, section one
of the West Virginia Constitution, the products of agriculture, and
while owned by the producer; and
(27) (29) Any other property or security exempted by any other
provision of law.
(b) Notwithstanding the provisions of subsection (a) of this
section, no property is exempt from taxation which has been
purchased or procured for the purpose of evading taxation, whether
temporarily holding the same over the first day of the assessment
year or otherwise.
(c) Real property which is exempt from taxation by subsection
(a) of this section shall be entered upon the assessor's books,
together with the true and actual value thereof, but no taxes may be levied upon the property or extended upon the assessor's books.
(d) Notwithstanding any other provisions of this section, this
section does not exempt from taxation any property owned by, or
held in trust for, educational, literary, scientific, religious or
other charitable corporations or organizations, including any
public or private nonprofit foundation or corporation existing for
the support of any college or university located in West Virginia,
unless such property, or the dividends, interest, rents or
royalties derived therefrom, is used primarily and immediately for
the purposes of the corporations or organizations.
(e) The Tax Commissioner shall, by issuance of rules, provide
each assessor with guidelines to ensure uniform assessment
practices statewide to effect the intent of this section.
(f) Inasmuch as there is litigation pending regarding
application of this section to property held by fraternities and
sororities, amendments to this section enacted in the year one
thousand nine hundred ninety-eight shall apply to all cases and
controversies pending on the date of such enactment.
(g) The amendment to subdivision (27), subsection (a) of this
section, passed during the two thousand five regular session of the
Legislature, shall apply to all applicable lease-purchase
agreements in existence upon the effective date of the amendment.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 741, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 741) passed with its title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 40, Limiting time purchaser of certain
real estate at sheriff's sale may claim refund.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11A-3-20 and §11A-3-23 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-20. Refund to purchaser of payment made at sheriff's sale
where property is subject of an erroneous assessment or is
otherwise nonexistent.
If, after by the thirty-first day of December one year after
the payment of the amount bid at a sheriff's sale, the purchaser
discovers that the lien purchased at such that sale is the subject
of an erroneous assessment or is otherwise nonexistent, such the
purchaser shall submit the abstract or certificate of an attorney
at law that the property is the subject of an erroneous assessment
or is otherwise nonexistent. Upon receipt thereof, of the abstract
or certificate, the sheriff shall cause the moneys so paid to be
refunded. Upon refund, the sheriff shall inform the assessor of
the erroneous assessment for the purpose of having the assessor
correct said the error. For failure to meet this requirement, the purchaser shall lose all benefits of his or her purchase.
§11A-3-23. Redemption from purchase; receipt; list of redemptions;
lien; lien of person redeeming interest of another; record.
(a) After the sale of any tax lien on any real estate pursuant
to section five of this article, the owner of, or any other person
who was entitled to pay the taxes on, any real estate for which a
tax lien thereon was purchased by an individual may redeem at any
time before a tax deed is issued for the real estate. In order to
redeem, he or she shall pay to the clerk of the county commission
the following amounts: (1) An amount equal to the taxes, interest
and charges due on the date of the sale, with interest at the rate
of one percent per month from the date of sale; (2) all other taxes
which have since been paid by the purchaser, his or her heirs or
assigns, with interest at the rate of one percent per month from
the date of payment; (3) any additional expenses incurred from the
first day of January October of the year following the sheriff's
sale to the date of redemption for the preparation of the list of
those to be served with notice to redeem and any title examination
incident thereto, with interest at the rate of one percent per
month from the date of payment for reasonable legal expenses
incurred for the services of an attorney who has performed an
examination of the title to the real estate and rendered a written
opinion and certification thereon: Provided, That the amount he or she shall be required to pay, excluding the interest, for the
expenses incurred for the preparation of the list of those to be
served with notice to redeem required by section nineteen of this
article and any title examination performed, shall not exceed two
four hundred dollars; and (4) all additional statutory costs paid
by the purchaser. Where the clerk has not received from the
purchaser satisfactory proof of the expenses incurred in preparing
the notice to redeem, and any examination of title incident
thereto, in the form of receipts or other evidence of legal
expenses incurred as provided in section nineteen of this article,
the person redeeming shall pay the clerk the sum of two hundred
dollars plus interest at the rate of one percent per month from the
first day of January October of the year following the sheriff's
sale for disposition by the sheriff pursuant to the provisions of
sections ten, twenty-four, twenty-five and thirty-two of this
article.
The person redeeming shall be given a receipt for the payment.
(b) Any person who, by reason of the fact that no provision is
made for partial redemption of the tax lien on real estate
purchased by an individual, is compelled in order to protect
himself or herself to redeem the tax lien on all of the real estate
when it belongs, in whole or in part, to some other person, shall
have a lien on the interest of that other person for the amount paid to redeem the interest. He or she shall lose his or her right
to the lien, however, unless within thirty days after payment he or
she files with the clerk of the county commission his or her claim
in writing against the owner of the interest, together with the
receipt provided in this section. The clerk shall docket the claim
on the judgment lien docket in his or her office and properly index
the claim. The lien may be enforced as other judgment liens are
enforced.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 40--A Bill
to amend and reenact §11A-3-20
and §11A-3-23 of
the Code of West Virginia, 1931, as amended, all
relating to a sheriff's tax on sale of real estate erroneously
assessed or nonexistent; modifying the method for a purchaser to
recover the purchase money; and increasing the title examination
costs charged by the clerk of the county commission from two
hundred dollars to four hundred dollars to redeem real estate.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 40) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 348, Clarifying when audits
are required of state funds or grants; penalty.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
§12-4-14. Reviews of persons receiving state funds or grants;
sworn statements by volunteer fire departments;
criminal penalties.
(a) For the purposes of this section:
(1) "Grantor" means a state spending unit awarding a state
grant.
(2) "Person" includes any corporation, partnership,
association, individual or other legal entity. The term "person"
does not include a state spending unit or a local government as defined in section one-a, article nine, chapter six of this code.
(3) "Review" means an attestation engagement, conducted and
prepared by a certified public accountant to test whether state
grants were spent as intended. The term "review" does not mean a
full-scope audit or review of the person receiving state funds.
(4)"State grant" means funding provided by a state spending
unit to a person upon application for a specific purpose. The term
"state grant" does not include: (A) Payments for goods and
services purchased by a state spending unit; (B) compensation to
state employees and public officials; (C) reimbursements to state
employees and public officials for travel or incidental expenses;
(D) grants of student aid; (E) government transfer payments; (F)
direct benefits provided under state insurance and welfare
programs; and (G) retirement benefits. The term "state grant" does
include formula distributions to volunteer and part-volunteer fire
departments made pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter.
(b) (1) Any corporation, association, or other organization in
West Virginia that is not a local government as defined in section
one-a, article nine, chapter six of this code and which person who
receives state funds or grants one or more state grants in the
amount of fifteen thousand dollars or more in the aggregate in a calendar year shall file an audit with the grantor a review of the
disbursement of state grant funds with the Legislative auditor's
office.
(2) The audit review required by subdivision (1) of this
subsection shall be filed within two years of the end of the
calendar year in which the disbursement of funds or grants state
grant funds by the grantor and was made. The review shall be made
by an independent certified public accountant at the cost of the
grantee and show person receiving the state grant. The scope of
the review is limited to showing that the state grant funds or
grants were spent for the purposes intended when the grant was
made.
(c) (1) Any person failing to file a required review within
the two-year period provided in subdivision (2), subsection (b) of
this section for any state grant funds disbursed after the first
day of July, two thousand three, is barred from subsequently
receiving state grants until the person has filed the review and is
otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons
failing to file a required review within the required time period
provided in subdivision (2), subsection (b) of this section for any
state grant disbursed after the first day of July, two thousand
three, to the Legislative Auditor for purposes of debarment from receiving state grants.
(d) (1) The state agency administering the funds or grants
state grant shall notify the grantee of the reporting requirements
set forth in this section. A grantee failing to file a required
audit within the two-year time period is barred from subsequently
receiving state funds or grants until the grantee has filed the
audit and is otherwise in compliance with the provisions of this
section.
(2) Any state agency administering a state grant shall, in the
manner designated by the Legislative Auditor, notify the
Legislative Auditor of the amount of funds to be disbursed, the
identity of the person authorized to receive the funds and the
purpose and nature of the state grant within thirty days of making
the state grant or authorizing the disbursement of the funds:
Provided, That if the state grant was awarded prior to the
effective date of the amendment and reenactment of this section in
the year two thousand five, the grantor shall provide the
information required by this section within ninety days of said
effective date.
(3) All grantors making state grants that would be subject to
the review requirements of this section shall, prior to awarding a
state grant, take reasonable actions to verify that the person is
not barred from receiving state grants pursuant to this section. The verification process shall, at a minimum, include:
(A) A requirement that the person seeking the state grant
provide a sworn statement from an authorized representative that
the person has filed all reviews for state grants received as
required under this section; and
(B) Confirmation from the Legislative Auditor by the grantor
that the person has not been identified as one who has failed to
file a review under this section: Provided, That such confirmation
may be accomplished by accessing the computerized database provided
pursuant to subdivision (4) of this subsection.
(4) The Legislative Auditor shall maintain a list identifying
persons who have failed to file reviews required by this section.
The list may be in the form of a computerized database that may be
accessed by state agencies over the Internet.
(e) If any review performed pursuant to the requirements of
this section provides evidence of a reportable condition or
violation, the grantor shall provide a copy of the review to the
Legislative Auditor within thirty days of receipt by the grantor.
(f) The grantor shall maintain copies of reviews required by
this section and make the reviews available for public inspection,
as well as for use in audits and performance reviews of the
grantor.
(b) (g)
Audits Reviews of state funds or grants under fifteen thousand dollars not required under the provisions of this section
may be authorized by the Joint Committee on Government and Finance
to be conducted by the Legislative auditor's office Auditor at no
cost to the grantee.: Provided, That volunteer
(h) (1) Volunteer and part-volunteer fire departments may
satisfy the audit review requirements of this section by submitting
a sworn statement of annual expenditures to the Legislative
auditor's office along with a filing fee of seventy-five dollars,
Auditor, on or before the fourteenth day of February of each year
if the volunteer fire department elects not to be audited. The
sworn statement of expenditures shall be signed by the chief or
director of the volunteer fire department and shall be made under
oath and acknowledged before a notary public. An additional filing
fee of twenty-five dollars shall be included with the sworn
statement of annual expenditures if the statement is submitted
between the fifteenth day of February and the fifteenth day of
March. An additional filing fee of fifty dollars shall be included
with the sworn statement of annual expenditures if the statement is
submitted between the sixteenth day of March and the fifteenth day
of April.
(2) If the sworn statement is not submitted on or before the
fifteenth day of April May, unless the time period is extended by
the Legislative Auditor, the volunteer fire department shall file an audit of the disbursement of funds, made by an independent
certified public accountant, with the legislative auditor's office
no later than the first day of July. The audit shall be made at
the cost of the volunteer fire department. Legislative Auditor may
conduct a review of the volunteer or part-volunteer fire
department.
(3) If the audit made by the independent certified public
accountant sworn statement of annual expenditures is not filed with
the Legislative Auditor by the first day of July, unless the time
period is extended by the Legislative Auditor, the Legislative
Auditor shall notify the State Treasurer who shall withhold payment
of one thousand dollars from any amount that would otherwise be
distributed to the fire department under the provisions of sections
fourteen-d and thirty-three, article three, chapter thirty-three of
this code and section sixteen-a, article twelve of said chapter and
pay the amount withheld to the fund from which it was distributed
to be redistributed the following year pursuant to the applicable
provisions of those sections until the review is complete. Moneys
withheld pursuant to this subdivision are to be deposited in the
special revenue account created in subdivision (4) of this
subsection and the Treasurer.
If the volunteer fire department does not timely file a sworn
statement of annual expenditures or an audit of the disbursement of funds, made by an independent certified public accountant, with the
Legislative auditor's office for three consecutive years, the
Legislative Auditor shall notify the State Treasurer who shall
withhold payment of any amount that would otherwise be distributed
to the fire department under the provisions of sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code
and section sixteen-a, article twelve of said chapter and pay the
amount withheld to the fund from which it was distributed to be
redistributed the following year pursuant to the applicable
provisions of those sections.
(c) (4) The office of the Legislative Auditor may assign an
employee or employees to perform audits reviews at the direction of
the Legislative Auditor of the disbursement of state grant funds or
grants to volunteer fire departments. The volunteer fire
department shall cooperate with the Legislative Auditor, the
Legislative Auditor's employees and the State Auditor in performing
their duties under this section. If the Legislative Auditor
determines a volunteer fire department is not cooperating, the
Legislative Auditor shall notify the State Treasurer who shall
withhold payment of any amount that would otherwise be distributed
to the fire department under the provisions of sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code
and section sixteen-a, article twelve of said chapter until the Legislative Auditor informs the Treasurer that the fire department
has cooperated as required by this section. The State Treasurer
shall pay the amount withheld into a special revenue account hereby
created in the State Treasury and designated the "Volunteer Fire
Department Audit Account". If, after one year from payment of the
amount withheld into the special revenue account, the Legislative
Auditor informs the State Treasurer of continued noncooperation by
the fire department, the State Treasurer shall pay the amount
withheld to the fund from which it was distributed to be
redistributed the following year pursuant to the applicable
provisions of those sections.
(d) Filing fees paid by volunteer fire departments pursuant to
this section shall be paid into a special revenue account created
in the State Treasury known as the Special Legislative Audit Fund.
Expenditures from the fund are authorized to be made by the
Legislative auditor's office solely for the purposes of payment of
costs associated with the audits conducted pursuant to this
section. Any person who files a fraudulent sworn statement of
expenditures under this section is guilty of a felony and, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars or imprisoned in a
state correctional facility for not less than one year nor more
than five years, or both fined and imprisoned.
(e) (5) Whenever the State Auditor performs an audit of a
volunteer fire department for any purpose the Auditor shall also
conduct an audit of other state funds received by the fire
department pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter. The Auditor shall send
a copy of any such audit to the Legislative Auditor. The
Legislative Auditor may accept an audit performed by the Auditor in
lieu of performing an audit a review under this section.
(f) (i) Any audit review submitted pursuant to the provisions
of this section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(j) Any person who files a fraudulent sworn statement of
expenditures under subsection (g) of this section, a fraudulent
sworn statement under subsection (d) of this section or a
fraudulent review under this section is guilty of a felony and,
upon conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars or imprisoned in a
state correctional facility for not less than one year nor more
than five years, or both fined and imprisoned.;
And,
Eng. Com Sub. for Senate Bill No. 348--A Bill to amend and
reenact §12-4-14 of the Code of West Virginia, 1931, as amended, relating to persons who receive state grants; providing
definitions; clarifying when reviews of state grants are required;
providing consequences for not complying with review requirements;
providing the withholding of state grants or funds; providing for
the debarment from future state grants under certain circumstances;
providing state agencies who administer grants additional duties
under certain circumstances; providing additional duties; and
providing criminal penalties.
On motion of Senator Bowman, the following amendments to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 348) were reported by the Clerk and adopted:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§12-4-14. Accountability of persons receiving state funds or
grants; sworn statements by volunteer fire
departments; criminal penalties.
(a) For the purposes of this section:
(1) "Grantor" means a state spending unit awarding a state
grant.
(2) "Person" includes any corporation, partnership,
association, individual or other legal entity. The term "person"
does not include a state spending unit or a local government as
defined in section one-a, article nine, chapter six of this code.
(3) "Report" means a compliance attestation engagement
performed and prepared by a certified public accountant to test
whether state grants were spent as intended. The term "report"
does not mean a full-scope audit or review of the person receiving
state funds.
(4) "State grant" means funding provided by a state spending
unit to a person upon application for a specific purpose. The term
"state grant" does not include: (A) Payments for goods and services
purchased by a state spending unit; (B) compensation to state
employees and public officials; (C) reimbursements to state
employees and public officials for travel or incidental expenses;
(D) grants of student aid; (E) government transfer payments; (F)
direct benefits provided under state insurance and welfare
programs; and (G) retirement benefits. The term "state grant" does
include formula distributions to volunteer and part-volunteer fire
departments made pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter.
(b) (1) Any corporation, association, or other organization in
West Virginia that is not a local government as defined in section
one-a, article nine, chapter six of this code and which person who
receives state funds or grants one or more state grants in the
amount of fifteen twenty-five thousand dollars or more in the aggregate in a calendar year shall file an audit with the grantor
a report of the disbursement of state grant funds with the
Legislative auditor's office.
(2) The audit report required by subdivision (1) of this
subsection shall be filed within two years of the end of the
calendar year in which the disbursement of funds or grants state
grant funds by the grantor and was made. The report shall be made
by an independent certified public accountant at the cost of the
grantee and show person receiving the state grant. The scope of
the report is limited to showing that the state grant funds or
grants were spent for the purposes intended when the grant was
made.
(c) (1) Any person failing to file a required report within
the two-year period provided in subdivision (2), subsection (b) of
this section for any state grant funds disbursed after the first
day of July, two thousand three, is barred from subsequently
receiving state grants until the person has filed the report and is
otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons
failing to file a required report within the required time period
provided in subdivision (2), subsection (b) of this section for any
state grant disbursed after the first day of July, two thousand
three, to the Legislative Auditor for purposes of debarment from receiving state grants.
(d) (1) The state agency administering the funds or grants
state grant shall notify the grantee of the reporting requirements
set forth in this section. A grantee failing to file a required
audit within the two-year time period is barred from subsequently
receiving state funds or grants until the grantee has filed the
audit and is otherwise in compliance with the provisions of this
section.
(2) Any state agency administering a state grant shall, in the
manner designated by the Legislative Auditor, notify the
Legislative Auditor of the amount of funds to be disbursed, the
identity of the person authorized to receive the funds and the
purpose and nature of the state grant within thirty days of making
the state grant or authorizing the disbursement of the funds:
Provided, That if the state grant was awarded prior to the
effective date of the amendment and reenactment of this section in
the year two thousand five, the grantor shall provide the
information required by this section within ninety days of the
effective date.
(3) All grantors making state grants that would be subject to
the report requirements of this section shall, prior to awarding a
state grant, take reasonable actions to verify that the person is
not barred from receiving state grants pursuant to this section. The verification process shall, at a minimum, include:
(A) A requirement that the person seeking the state grant
provide a sworn statement from an authorized representative that
the person has filed all reports for state grants received as
required under this section; and
(B) Confirmation from the Legislative Auditor by the grantor
that the person has not been identified as one who has failed to
file a report under this section. Confirmation may be accomplished
by accessing the computerized database provided in subdivision (4)
of this subsection.
(4) The Legislative Auditor shall maintain a list identifying
persons who have failed to file reports required by this section.
The list may be in the form of a computerized database that may be
accessed by state agencies over the internet.
(e) If any report performed pursuant to the requirements of
this section provides evidence of a reportable condition or
violation, the grantor shall provide a copy of the report to the
Legislative Auditor within thirty days of receipt by the grantor.
(f) The grantor shall maintain copies of reports required by
this section and make the reports available for public inspection,
as well as for use in audits and performance reviews of the
grantor.
(b) (g) Audits Reports of state funds or grants under fifteen thousand dollars not required under the provisions of this section
may be authorized by the Joint Committee on Government and Finance
to be conducted by the Legislative auditor's office Auditor at no
cost to the grantee.: Provided, That volunteer
(h) (1) Volunteer and part-volunteer fire departments may
satisfy the audit report requirements of this section by submitting
a sworn statement of annual expenditures to the Legislative
auditor's office along with a filing fee of seventy-five dollars,
Auditor on or before the fourteenth day of February of each year,
if the volunteer fire department elects not to be audited. The
sworn statement of expenditures shall be signed by the chief or
director of the volunteer fire department and shall be made under
oath and acknowledged before a notary public. An additional filing
fee of twenty-five dollars shall be included with the sworn
statement of annual expenditures if the statement is submitted
between the fifteenth day of February and the fifteenth day of
March. An additional filing fee of fifty dollars shall be included
with the sworn statement of annual expenditures if the statement is
submitted between the sixteenth day of March and the fifteenth day
of April.
(2) If the sworn statement is not submitted on or before the
fifteenth day of April May, unless the time period is extended by
the Legislative Auditor, the volunteer fire department shall file an audit of the disbursement of funds, made by an independent
certified public accountant, with the Legislative auditor's office
no later than the first day of July. The audit shall be made at
the cost of the volunteer fire department. Legislative Auditor may
conduct a report of the volunteer or part-volunteer fire
department.
(3) If the audit made by the independent certified public
accountant sworn statement of annual expenditures is not filed with
the Legislative Auditor by the first day of July, unless the time
period is extended by the Legislative Auditor, the Legislative
Auditor shall notify the State Treasurer who shall withhold payment
of one thousand dollars from any amount that would otherwise be
distributed to the fire department under the provisions of sections
fourteen-d and thirty-three, article three, chapter thirty-three of
this code and section sixteen-a, article twelve of said chapter and
pay the amount withheld to the fund from which it was distributed
to be redistributed the following year pursuant to the applicable
provisions of those sections until the report is complete. Moneys
withheld pursuant to this subdivision are to be deposited in the
special revenue account created in the State Treasury in
subdivision (4) of this subsection.
If the volunteer fire department does not timely file a sworn
statement of annual expenditures or an audit of the disbursement of funds, made by an independent certified public accountant, with the
Legislative auditor's office for three consecutive years, the
Legislative Auditor shall notify the State Treasurer who shall
withhold payment of any amount that would otherwise be distributed
to the fire department under the provisions of sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code
and section sixteen-a, article twelve of said chapter and pay the
amount withheld to the fund from which it was distributed to be
redistributed the following year pursuant to the applicable
provisions of those sections.
(c) (4) The office of the Legislative Auditor may assign an
employee or employees to perform audits or reviews at the direction
of the Legislative Auditor of the disbursement of state grant funds
or grants to volunteer fire departments. The volunteer fire
department shall cooperate with the Legislative Auditor, the
Legislative Auditor's employees and the State Auditor in performing
their duties under this section. If the Legislative Auditor
determines a volunteer fire department is not cooperating, the
Legislative Auditor shall notify the State Treasurer who shall
withhold payment of any amount that would otherwise be distributed
to the fire department under the provisions of sections fourteen-d
and thirty-three, article three, chapter thirty-three of this code
and section sixteen-a, article twelve of said chapter until the Legislative Auditor informs the Treasurer that the fire department
has cooperated as required by this section. The State Treasurer
shall pay the amount withheld into a special revenue account hereby
created in the State Treasury and designated the "Volunteer Fire
Department Audit Account". If, after one year from payment of the
amount withheld into the special revenue account, the Legislative
Auditor informs the State Treasurer of continued noncooperation by
the fire department, the State Treasurer shall pay the amount
withheld to the fund from which it was distributed to be
redistributed the following year pursuant to the applicable
provisions of those sections.
(d) Filing fees paid by volunteer fire departments pursuant to
this section shall be paid into a special revenue account created
in the State Treasury known as the Special Legislative Audit Fund.
Expenditures from the fund are authorized to be made by the
Legislative auditor's office solely for the purposes of payment of
costs associated with the audits conducted pursuant to this
section. Any person who files a fraudulent sworn statement of
expenditures under this section is guilty of a felony and, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars or imprisoned in a
state correctional facility for not less than one year nor more
than five years, or both fined and imprisoned.
(e) (5) Whenever the State Auditor performs an audit of a
volunteer fire department for any purpose the Auditor shall also
conduct an audit of other state funds received by the fire
department pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section
sixteen-a, article twelve of said chapter. The Auditor shall send
a copy of any such the audit to the Legislative Auditor. The
Legislative Auditor may accept an audit performed by the Auditor in
lieu of performing an audit a report under this section.
(f) (i) Any audit report submitted pursuant to the provisions
of this section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(j) Any person who files a fraudulent sworn statement of
expenditures under subsection (g) of this section, a fraudulent
sworn statement under subsection (d) of this section or a
fraudulent report under this section is guilty of a felony and,
upon conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars or imprisoned in a
state correctional facility for not less than one year nor more
than five years, or both fined and imprisoned.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 348--A Bill to amend and
reenact §12-4-14 of the Code of West Virginia, 1931, as amended,
relating to persons who receive state grants; providing
definitions; clarifying when reports of state grants are required;
providing consequences for not complying with reporting
requirements; providing the withholding of state grants or funds;
providing for the debarment from future state grants under certain
circumstances; requiring state agencies who administer state grants
to have additional duties under certain circumstances; removing
filing fees for volunteer fire departments; and providing criminal
penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 348, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 348) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 348) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 428, Relating
to Rehabilitation Environmental Action Plan.
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 three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5,
§17-24-6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the Code of
West Virginia, 1931, as amended, be repealed; that §20-7-24,
§20-7-25, §20-7-26, §20-7-27 and §20-7-29 of said code be repealed;
that §20-11-1, §20-11-2, §20-11-3, §20-11-4, §20-11-5, §20-11-6,
§20-11-7, §20-11-8, §20-11-9, §20-11-10, §20-11-11 and §20-11-12 of
said code be repealed; that §7-1-3ff of said code be amended and
reenacted; that §17-2A-21 of said code be amended and reenacted;
that §17-23-2 of said code be amended and reenacted; that §17A-10-
16 of said code be amended and reenacted; that §17C-14-14 of said
code be amended and reenacted; that §22-15-2 and §22-15-21 of said
code be amended and reenacted; that said code be amended by adding
thereto a new article, designated §22-15A-1, §22-15A-2, §22-15A-3,
§22-15A-4, §22-15A-5, §22-15A-6, §22-15A-7, §22-15A-8, §22-15A-9,
§22-15A-10, §22-15A-11, §22-15A-12, §22-15A-13, §22-15A-14, §22-
15A-15, §22-15A-16, §22-15A-17, §22-15A-18, §22-15A-19, §22-15A-20,
§22-15A-21, §22-15A-22 and §22-15A-23; that §22C-3-7 and §22C-3-24 of said code be amended and reenacted; that §22C-4-24 and §22C-4-25
of said code be amended and reenacted; that §31-15A-17a of said
code be amended and reenacted; and that §49-5-13 and §49-5-13b of
said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement,
vacating, closing, removal or demolition of unsafe
or unsanitary structures and the clearance and
removal of refuse, debris, overgrown vegetation,
toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure
for complaints; promulgation of rules governing
investigation and hearing of complaints; remedies
for failure to comply with Commission-ordered
repairs or alterations; lien and sale of land to
recover costs; entry on land to perform repairs and
alterations or to satisfy lien; receipt of grants
and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the repair,
alteration or improvement, or the vacating and closing or removal or demolition, or any combination thereof, of any dwellings or
other buildings, except for buildings utilized for farm purposes on
land actually being used for farming, unfit for human habitation
due to dilapidation, defects increasing the hazard of fire,
accidents or other calamities, lack of ventilation, light or
sanitary facilities or any other conditions prevailing in any
dwelling or building, whether used for human habitation or not,
which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the removal
and cleanup of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private
lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of
natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances,
shall designate an enforcement agency which shall consist of the
county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee,
a fire chief from a county fire company, the county litter control
officer, if the commission chooses to hire one, and two members at large selected by the county commission to serve two-year terms.
The county sheriff shall serve as an ex officio member of the
enforcement agency and the county officer charged with enforcing
the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this
section, county litter control officers shall have authority to
issue citations for violations of the provisions of section
twenty-six, article seven, chapter twenty four, article fifteen-a,
chapter twenty-two of this code after completing a training course
offered by the West Virginia division of natural resources
Department of Environmental Protection. Nothing in this subsection
supercedes the authority or duty of other law-enforcement officers
to preserve law and order and enforce the litter control program.
(e) Any ordinance adopted pursuant to the provisions of this
section shall provide fair and equitable rules of procedure and any
other standards considered necessary to guide the enforcement
agency, or its agents, in the investigation of dwelling or building
conditions, accumulation of refuse or debris, overgrown vegetation
or toxic spillage or toxic seepage and shall provide for fair and
equitable rules of procedure for instituting and conducting
hearings in the matters before the county commission. Any entrance
upon premises for the purpose of making examinations shall be made
in a manner as to cause the least possible inconvenience to the persons in possession.
(f) Any county commission adopting ordinances authorized by
this section shall hear and determine complaints of the enforcement
agency. Complaints shall be initiated by citation issued by the
county litter control officer or petition of the county engineer
(or other technically qualified county employee or consulting
engineer) on behalf of and at the direction of the enforcement
agency, but only after that agency has investigated and determined
that any dwelling, building, accumulation of refuse or debris,
overgrown vegetation or toxic spillage or toxic seepage is unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission
shall cause the owner or owners of the private land in question to
be served with a copy of the complaint. Service shall be
accomplished in the manner provided in Rule four of the West
Virginia Rules of Civil Procedure. The complaint shall state the
findings and recommendations of the enforcement agency and that
unless the owner or owners of the property file with the clerk of
the county commission a written request for a hearing within ten
days of receipt of the complaint, an order will be issued by the
county commission implementing the recommendations of the
enforcement agency. If the owner or owners of the property file a request for a hearing, the county commission shall issue an order
setting this matter down for hearing within twenty days. Hearings
shall be recorded by electronic device or by court reporter. The
West Virginia rules of evidence do not apply to the proceedings,
but each party has the right to present evidence and examine and
cross-examine all witnesses. The enforcement agency has the burden
of proving its allegation by a preponderance of the evidence and
has the duty to go forward with the evidence. At the conclusion of
the hearing the county commission shall make findings of fact,
determinations and conclusions of law as to whether the dwelling or
building: Is unfit for human habitation due to dilapidation; has
defects that increase the hazard of fire, accidents or other
calamities, lacks ventilation, light or sanitary facilities; or any
other conditions prevailing in the dwelling or building, whether
used for human habitation or not and whether the result of natural
or manmade force or effect, which would cause such dwelling or
other building to be unsafe, unsanitary, dangerous or detrimental
to the public safety or welfare; or whether there is an
accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to
be unsafe, unsanitary, dangerous or detrimental to the public
safety or welfare, whether the result of natural or manmade force
or effect. The county commission has authority to order the owner or owners thereof to repair, alter, improve, vacate, remove, close,
clean up or demolish the dwelling or building in question or to
remove or clean up any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage within a reasonable
time and to impose daily civil monetary penalties on the owner or
owners who fail to obey an order. Appeals from the county
commission to the circuit court shall be in accordance with the
provisions of article three, chapter fifty-eight of this code.
(g) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth in
the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements or the ordered demolition, removal or
cleanup. The county commission may enter into any contract with
any contractor to accomplish the ordered repairs, alterations or
improvements or the ordered demolition, removal or cleanup.
(h) A civil proceeding may be brought in circuit court by the
county commission against the owner or owners of the private land
which is the subject matter of the order of the county commission
to subject the private land in question to a lien for the amount of
the contractor's costs in making these ordered repairs, alterations
or improvements or ordered demolition, removal or cleanup, together
with any daily civil monetary penalty imposed and reasonable attorney fees and court costs and to order and decree the sale of
the private land in question to satisfy the lien and to order and
decree that the contractor may enter upon the private land in
question at any and all times necessary to make improvements or
ordered repairs, alterations or improvements, or ordered
demolition, removal or cleanup. In addition, the county commission
shall have the authority to institute a civil action in a court of
competent jurisdiction against the landowner or other responsible
party for all costs incurred by the county with respect to the
property and for reasonable attorney fees and court costs incurred
in the prosecution of the action.
(i) County commissions have the power and authority to receive
and accept grants, subsidies, donations and services in kind
consistent with the objectives of this section.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-21. Commissioner authorized to contract for implementation
of litter control programs.
In addition to all other powers granted and duties imposed
upon the Commissioner, he or she shall contract with the director
of the department of natural resources Secretary of the Department
of Environmental Protection and expend moneys from the highway
litter control fund to implement the litter control program and litter control maintenance of the highways pursuant to article
seven, chapter twenty fifteen-a, chapter twenty-two of this code.
ARTICLE 23. SALVAGE YARDS.
§17-23-2. Definitions.
As used in this article:
(a) "Abandoned salvage yard" means any unlicensed salvage yard
or any salvage yard that was previously licensed but upon which the
license has not been renewed for more than one year.
(b) "Commissioner" means the Commissioner of the West Virginia
Division of Highways.
(c) "Fence" means an enclosure, barrier or screen constructed
of materials or consisting of plantings, natural objects or other
appropriate means approved by the commissioner and located, placed
or maintained so as effectively to screen at all times salvage
yards and the salvage therein contained from the view of persons
passing upon the public roads of this state.
(d) "Occupied private residence" means a private residence
which is occupied for at least six months each year.
(e) "Owner or operator" includes an individual, firm,
partnership, association or corporation or the plural thereof.
(f) "Residential community" means an area wherein five or more
occupied private residences are located within any one thousand
foot radius.
(g) "Salvage" means old or scrap brass, copper, iron, steel,
other ferrous or nonferrous materials, batteries or rubber and any
junked, dismantled or wrecked machinery, machines or motor vehicles
or any parts of any junked, dismantled or wrecked machinery,
machines or motor vehicles.
(h) "Salvage yard" means any place which is maintained,
operated or used for the storing, keeping, buying, selling or
processing of salvage, or for the operation and maintenance of a
motor vehicle graveyard: Provided, That no salvage yard shall
accept, store or process more than one hundred waste tires unless
it has all permits necessary to operate a monofill, waste tire
processing facility or solid waste facility. Any salvage yard
which currently has on its premises more than one hundred waste
tires not on a vehicle must establish a plan in conjunction with
the division Department of Environmental Protection for the proper
disposal of the waste tires.
(i) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use, as defined in section two, article twenty-four,
chapter seventeen fifteen-a, chapter twenty-two of this code,
because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to
meet the minimum requirements to pass a West Virginia motor vehicle
safety inspection. Used tires located at a commercial recapping
facility or tire dealer for the purpose of being reused or recapped
are not waste tires.
(j) "Waste tire monofill or monofill" means an approved solid
waste facility where waste tires not mixed with any other waste are
placed for the purpose of long term storage for eventual retrieval
for marketing purposes.
(k) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling or marketing.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 10. FEES FOR REGISTRATION, LICENSING, ETC.
§17A-10-16. Fee for the A. James Manchin Fund.
In addition to each fee provided for in this article, an
additional five-dollar fee shall be imposed on the issuance of each
certificate of title issued pursuant to article three of this chapter. All money collected under this section shall be deposited
in the State Treasury and credited to the A. James Manchin Fund to
be established within the department Division of Highways for waste
tire remediation in accordance to the provisions of article twenty-
four fifteen-a, chapter seventeen twenty-two of this code. The
Commissioner is to work with the Secretary of the Department of
Environmental Protection to accomplish the goals of said chapter.
The additional fee provided herein shall be imposed for each
application for certificate and renewal thereof made on or after
the first day of July, two thousand: Provided, That no further
collections or deposits shall be made after the Commissioner
certifies to the Governor and the Legislature that the remediation
of all waste tire piles that were determined by the Commissioner to
exist on the first day of June, two thousand one, has been
completed.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-14. Unlawful to litter from motor vehicle; penalty; rule
making.
(a) It is unlawful for any driver or passenger of a motor
vehicle or other conveyance to place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown, any litter from a motor
vehicle or other conveyance in or upon any public or private highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(b) For purposes of this section, "litter" means all waste
material including, but not limited to, any garbage, refuse, trash,
disposable package, container, can, bottle, paper, ashes, cigarette
or cigar butt, carcass of any dead animal or any part thereof, or
any other offensive or unsightly matter, but not including the
wastes of primary processes of mining, logging, sawmilling, farming
or manufacturing.
(c) In addition to any penalty imposed for littering under the
provisions of article seven, chapter twenty fifteen-a, chapter
twenty-two of this code, any driver of a motor vehicle or other
conveyance convicted of violating this section shall have three
points assessed against his or her driver's license.
(d) The Commissioner shall assess points against the driver's
license of any driver of a motor vehicle or other conveyance found
guilty of violating this section upon receiving notice from a
circuit clerk, magistrate court or municipal court of this state of
the conviction. Circuit clerks, magistrate courts and municipal
courts of this state shall promptly notify the Commissioner of the
convictions.
(e) When there is more than one occupant in a motor vehicle or
other conveyance and it cannot be determined which occupant is
responsible for violating this section, the driver shall be
presumed to be responsible for the violation.
(f) The Commissioner of the Division of Motor Vehicles shall
propose or amend legislative rules for promulgation, in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to effectuate the purposes of this section.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(1) "Agronomic rate" means the whole sewage sludge application
rate, by dry weight, designed:
(A) To provide the amount of nitrogen needed by the food crop,
feed crop, fiber crop, cover crop or vegetation on the land; and
(B) To minimize the amount of nitrogen in the sewage sludge
that passes below the root zone of the crop or vegetation grown on
the land to the groundwater.
(2) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership, common management or family relationships as the director may specify,
including the following: Spouses, parents and children and
siblings.
(3) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(4) "Back hauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(5) "Bulking agent" means any material mixed and composted
with sewage sludge.
(6) "Class A facility" means a commercial solid waste facility
which handles an aggregate of between ten thousand and thirty
thousand tons of solid waste per month. Class A facility includes
two or more Class B solid waste landfills owned or operated by the
same person in the same county, if the aggregate tons of solid
waste handled per month by such landfills exceeds nine thousand
nine hundred ninety-nine tons of solid waste per month.
(7) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical separation
of materials for the purpose of reselling or recycling at least
seventy percent by weight of the materials coming into the commercial recycling facility.
(8) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other than
the owner or operator of the facility and does not include an
approved solid waste facility owned and operated by a person for
the sole purpose of the disposal, processing or composting of solid
wastes created by that person or such person and other persons on
a cost-sharing or nonprofit basis and does not include land upon
which reused or recycled materials are legitimately applied for
structural fill, road base, mine reclamation and similar
applications.
(9) "Compost" means a humus-like material resulting from
aerobic, microbial, thermophilic decomposition of organic
materials.
(10) "Composting" means the aerobic, microbial, thermophilic
decomposition of natural constituents of solid waste to produce a
stable, humus-like material.
(11) "Commercial composting facility" means any solid waste
facility processing solid waste by composting, including sludge
composting, organic waste or yard waste composting, but does not
include a composting facility owned and operated by a person for
the sole purpose of composting waste created by that person or such
person and other persons on a cost-sharing or nonprofit basis and shall not include land upon which finished or matured compost is
applied for use as a soil amendment or conditioner.
(12) "Cured compost" or "finished compost" means compost which
has a very low microbial or decomposition rate which will not
reheat or cause odors when put into storage and that has been put
through a separate aerated curing cycle stage of thirty to sixty
days after an initial composting cycle or compost which meets all
regulatory requirements after the initial composting cycle.
(13) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to article one of this
chapter.
(14) (13) "Division" "Department" means the division
Department of Environmental Protection.
(15) (14) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(16) (15) "Incineration technologies" means any technology
that uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of whether
the purpose is processing, disposal, electric or steam generation or any other method by which solid waste is incinerated.
(17) (16) "Incinerator" means an enclosed device using
controlled flame combustion to thermally break down solid waste,
including refuse-derived fuel, to an ash residue that contains
little or no combustible materials.
(18) (17) "Landfill" means any solid waste facility for the
disposal of solid waste on or in the land for the purpose of
permanent disposal. Such facility is situated, for purposes of
this article, in the county where the majority of the spatial area
of such facility is located.
(19) (18) "Materials recovery facility" means any solid waste
facility at which source-separated materials or materials recovered
through a mixed waste processing facility are manually or
mechanically shredded or separated for purposes of reuse and
recycling, but does not include a composting facility.
(20) (19) "Mature compost" means compost which has been
produced in an aerobic, microbial, thermophilic manner and does not
exhibit phytotoxic effects.
(21) (20) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source-
separated from general solid waste.
(22) (21) "Mixed waste processing facility" means any solid
waste facility at which materials are recovered from mixed solid waste through manual or mechanical means for purposes of reuse,
recycling or composting.
(23) (22) "Municipal solid waste incineration" means the
burning of any solid waste collected by any municipal or
residential solid waste disposal company.
(24) (23) "Open dump" means any solid waste disposal which
does not have a permit under this article, or is in violation of
state law, or where solid waste is disposed in a manner that does
not protect the environment.
(25) (24) "Person" or "persons" means any industrial user,
public or private corporation, institution, association, firm or
company organized or existing under the laws of this or any other
state or country; State of West Virginia; governmental agency,
including federal facilities; political subdivision; county
commission; municipal corporation; industry; sanitary district;
public service district; drainage district; soil conservation
district; watershed improvement district; partnership; trust;
estate; person or individual; group of persons or individuals
acting individually or as a group; or any legal entity whatever.
(26) (25) "Publicly owned treatment works" means any treatment
works owned by the state or any political subdivision thereof, any
municipality or any other public entity which processes raw
domestic, industrial or municipal sewage by any artificial or natural processes in order to remove or so alter constituents as to
render the waste less offensive or dangerous to the public health,
comfort or property of any of the inhabitants of this state before
the discharge of the plant effluent into any of the waters of this
state, and which produces sewage sludge.
(27) (26) "Recycling facility" means any solid waste facility
for the purpose of recycling at which neither land disposal nor
biological, chemical or thermal transformation of solid waste
occurs: Provided, That mixed waste recovery facilities, sludge
processing facilities and composting facilities are not considered
recycling facilities nor considered to be reusing or recycling
solid waste within the meaning of this article, article fifteen-a
of this chapter and article four, chapter twenty-two-c and article
eleven, chapter twenty of this code.
(28) (27) "Sewage sludge" means solid, semisolid or liquid
residue generated during the treatment of domestic sewage in a
treatment works. Sewage sludge includes, but is not limited to,
domestic septage, scum or solids removed in primary, secondary or
advanced wastewater treatment processes and a material derived from
sewage sludge. "Sewage sludge" does not include ash generated
during the firing of sewage sludge in a sewage sludge incinerator.
(28) "Secretary" means the Secretary of the Department of
Environmental Protection or such other person to whom the Secretary has delegated authority or duties pursuant to article one of this
chapter.
(29) "Sewage sludge processing facility" is a solid waste
facility that processes sewage sludge for: (A) Land application;
(B) incineration; or (C) disposal at an approved landfill. Such
processes include, but are not limited to, composting, lime
stabilization, thermophilic, microbial and anaerobic digestion.
(30) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(31) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration; sludge from a waste treatment plant; water supply
treatment plant or air pollution control facility; and other
discarded materials, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage or solid or dissolved materials in irrigation return flows
or industrial discharges which are point sources and have permits
under article five-a of this chapter, or source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, as
amended, including any nuclear or byproduct material considered by
federal standards to be below regulatory concern, or a hazardous
waste either identified or listed under article five-e of this
chapter or refuse, slurry, overburden or other wastes or material
resulting from coal-fired electric power or steam generation, the
exploration, development, production, storage and recovery of coal,
oil and gas and other mineral resources placed or disposed of at a
facility which is regulated under chapter twenty-two, twenty-two-a
or twenty-two-b of this code, so long as such placement or disposal
is in conformance with a permit issued pursuant to such chapters.
(32) "Solid waste disposal" means the practice of disposing of
solid waste including placing, depositing, dumping or throwing or
causing any solid waste to be placed, deposited, dumped or thrown.
(33) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in the
state register pursuant to section eight, article twenty-six,
chapter sixteen of this code.
(34) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities, mixed waste processing facilities, sewage sludge processing facilities, commercial composting
facilities and other such facilities not herein specified, but not
including land upon which sewage sludge is applied in accordance
with section twenty of this article. Such facility shall be deemed
to be situated, for purposes of this article, in the county where
the majority of the spatial area of such facility is located:
Provided, That a salvage yard, licensed and regulated pursuant to
the terms of article twenty-three, chapter seventeen of this code,
is not a solid waste facility.
(35) "Solid waste facility operator" means any person or
persons possessing or exercising operational, managerial or
financial control over a commercial solid waste facility, whether
or not such person holds a certificate of convenience and necessity
or a permit for such facility.
(36) "Source-separated materials" means materials separated
from general solid waste at the point of origin for the purpose of
reuse and recycling but does not mean sewage sludge.
§22-15-21. Waste tire management.
(a) No person, except those persons who have received and
maintained a valid permit or license from the state for the
operation of a solid waste facility, waste tire monofill, waste
tire processing facility, or other such permitted activities, shall
accumulate waste tires without obtaining a license or permit from the Division: Provided, That persons who use waste tires for
beneficial uses may in the discretion of the director Secretary of
the division Department of Environmental Protection accumulate
waste tires without a permit.
(b) No person shall dispose of waste tires in or upon any
public or private land, any site or facility other than a site or
facility which holds a valid permit issued by the division
Department for such disposal or usage.
(c) No person shall knowingly transport or knowingly allow
waste tires under his or her control to be transported to a site or
facility that does not have a valid permit or license to accept
waste tires.
(d) No person shall engage in the open burning of waste tires.
(e) Persons who violate this article are subject to all
enforcement actions available to the director Secretary under the
provisions of section fifteen, article fifteen, chapter twenty-two
of this code.
(f) Except as otherwise provided in subsection (g) of this
section, each retailer is required to accept one tire of comparable
size for each new tire sold at retail. The retailer may charge a
disposal fee to cover the actual costs of lawful waste tire
disposal. No retail tire dealer may deliver any waste tire, or
part thereof, to a person not authorized by the state of West Virginia to transport or accept waste tires.
(g) Any person purchasing a new tire from a retailer must
provide a used or waste tire for each tire purchased or sign a
waiver, provided to the tire retailer by the division Department,
acknowledging that he or she is retaining the waste tire and that
he or she is legally responsible for proper disposal of each tire
retained. These forms are to be kept by the retailer for three
years. If the tire purchaser returns to the tire retailer with a
signed form given to the purchaser by that retailer, the retailer
must accept up to the total number of comparable size tires as
previously retained by the purchaser: Provided, That persons
having winter tires changed or buying new winter tires and keeping
usable summer tires for later installation are not required to
provide a used or waste tire or sign a waiver.
(h) Each tire retailer shall post in a conspicuous place a
written notice, provided by the division Department, that bears the
following statements:
(1) "State law requires us to accept your (old) waste tires
for recycling or proper disposal if you purchase new tires from
us."
(2) "State law authorizes us to charge you no more than the
actual cost of disposal of your waste tires even if you do not
leave your tires with us."
(3) "It is a crime to burn, bury, abandon or throw away waste
tires without authorization and or permits from the Division
Department of Environmental Protection."
This notice must be at least eight and one-half inches wide
and eleven inches high.
(i) Solid waste facilities shall accept whole waste tires and
may charge a reasonable fee for acceptance of waste tires. All
waste tires except those disposed of in a landfill shall be
excluded from the calculation of monthly tonnage limits and from
any solid waste disposal assessment fees imposed by section five-a,
article eleven, chapter twenty nineteen, article fifteen-a, chapter
twenty-two; section eleven, article fifteen, chapter twenty-two;
section four, article sixteen, chapter twenty-two; and section
thirty, article four, chapter twenty-two-c of this code.
(j) Solid waste facilities shall accept and dispose of whole
tires from state authorized tire remediation projects. All waste
tires from state authorized tire remediation projects except those
disposed of in a landfill shall be excluded from the calculation of
monthly tonnage limits and from any solid waste disposal assessment
fees imposed by section five-a, article eleven, chapter twenty
nineteen, article fifteen-a, chapter twenty-two; section eleven,
article fifteen, chapter twenty-two; section four, article sixteen,
chapter twenty-two; and section thirty, article four, chapter twenty-two-c of this code. For state-sponsored tire remediation
projects, the state may negotiate with the solid waste facility for
rates and charges for the disposal of waste tires regardless of the
rates and charges established by the Public Service Commission
pursuant to article one, chapter twenty-four of this code:
Provided, That the disposal of whole tires in a solid waste
facility is allowed only when the division of highways or the
division Department of Environmental Protection has determined
there is no other reasonable alternative available.
(k) The division Department shall propose for legislative
promulgation emergency and legislative rules to effectuate the
purposes of this section.
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§22-15A-1. Legislative findings and purpose.
(a) The Legislature finds that litter is a public nuisance and
distracts from the beauty of the state and its natural resources.
It is therefore necessary to establish and implement a litter
control program to coordinate public and private litter control
efforts; to establish penalties for littering; to provide for
litter pickup programs; to create education programs; and to
provide assistance to local solid waste authority litter control
efforts.
(b) The Legislature further finds that the improper management
of commercial and residential solid waste and the unlawful disposal
of such waste creates open dumps that adversely impacts the state's
natural resources, public water supplies and the public health,
safety and welfare of the citizens of the state. It is therefore
necessary to establish a program to promote pollution prevention
and to eliminate and remediate open dumps.
(c) The Legislature further finds that waste tire piles are a
direct product of state citizens use and enjoyment of state roads
and highways and proper tire waste disposal is a necessary
component of maintenance of the transportation system. The
accumulation of waste tires has also become a significant
environmental and public health hazard to the state and the
location and number of waste tires are directly related to the
efficiency of travel, by citizens, visitors and of commerce, along
public highways in West Virginia. In particular, the Legislature
recognizes that waste tires are widespread in location and in
number throughout the state; waste tires physically touch and
concern public highways, including, but not limited to, state
roads, county roads, park roads, secondary routes and orphan roads,
all of which interferes with the efficiency of public highways; and
further that the existence of waste tires along and near public
highways is sometimes accompanied by other hazards and, in turn, adversely impacts the proper maintenance and efficiency of public
highways for citizens.
(d) The Legislature also recognizes and declares that waste
tires are a public nuisance and hazard; that waste tires serve as
harborage and breeding places for rodents, mosquitoes, fleas, ticks
and other insects and pests injurious to the public health, safety
and general welfare; that waste tires collected in large piles pose
an excessive risk to public health, safety and welfare from disease
or fire; that the environmental, economic and societal damage
resulting from fires in waste tire piles can be avoided by removing
the piles; and that tire pile fires cause extensive pollution of
the air and surface and groundwater for miles downwind and
downstream from the fire.
(e) Therefore, in view of the findings relating to waste
tires, the Legislature declares it to be the public policy of the
State of West Virginia to eliminate the present danger resulting
from discarded or abandoned waste tires and to eliminate the visual
pollution resulting from waste tire piles and that in order to
provide for the public health, safety and welfare, quality of life
and to reverse the adverse impacts to the proper maintenance and
efficiency of public highways, it is necessary to enact legislation
to those ends by providing expeditious means and methods for
effecting the disposal of waste tires.
(f) The Legislature finds that many citizens desire a
recycling program in order to conserve limited natural resources,
reduce litter, recycle valuable materials, extend the useful life
of solid waste landfills, reduce the need for new landfills, and
create markets for recyclable materials. It is therefore necessary
to establish goals for recycling solid waste; to require certain
municipalities to implement recycling programs; to authorize
counties to adopt comprehensive recycling programs; to encourage
source separation of solid waste; to increase the purchase of
recycled products by the various agencies and instrumentalities of
government; and to educate the public concerning the benefits of
recycling.
(g) The Legislature finds that the effectiveness of litter
control, open dump, tire cleanup programs and recycling programs
have been made less efficient by fragmented implementation of the
various programs by different agencies. It is therefore necessary
to coordinate all such programs under one program managed by the
Department to ensure that all current and future litter, open dump,
waste tire and recycling issues are managed and addressed
efficiently and effectively.
(h) This article implements the A. James Manchin
Rehabilitation Environmental Action Plan, a coordinated effort to
address litter, waste, open dump, tire cleanup and recycling programs.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers, feed hopper or watering troughs
for livestock, other agricultural uses approved by the Department
of Environmental Protection, playground equipment, boat or truck
dock construction, house or building construction, go-cart,
motorbike or race track barriers, or similar types of beneficial
applications: Provided, That waste tires may not be reused as
fencing, as erosion control structures, along stream banks or river
banks or reused in any manner where human health or the
environment, as determined by the Secretary of the Department of
Environmental Protection, is put at risk.
(2) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(3) "Court" means any circuit, magistrate or municipal court.
(4) "Department" means the Department of Environmental
Protection.
(5) "Litter" means all waste material including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper, ashes, cigarette or cigar butt,
carcass of any dead animal or any part thereof, or any other
offensive or unsightly matter, but not including the wastes of
primary processes of mining, logging, sawmilling, farming or
manufacturing.
(6) "Litter receptacle" means those containers suitable for
the depositing of litter at each respective public area designated
by the Secretary's rules promulgated pursuant to subsection (e),
section three of this article.
(7) "Person" means a natural person, corporation, firm,
partnership, association or society, and the plural as well as the
singular.
(8) "Public area" means an area outside of a municipality,
including public road and highway rights-of-way, parks and
recreation areas owned or controlled by this state or any county of
this state, or an area held open for unrestricted access by the
general public.
(9) "Remediate or Remediation" means to remove all litter,
solid waste, and tires located above grade at a site: Provided, That remediation does not include clean up of hazardous waste.
(10) "Secretary" means the Secretary of the Department of
Environmental Protection.
(11) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use because of wear, damage or defect. A tire is no
longer considered to be suitable for its original intended purpose
when it fails to meet the minimum requirements to pass a West
Virginia motor vehicle safety inspection. Used tires located at a
commercial recapping facility or tire dealer for the purpose of
being reused or recapped are not waste tires.
(12) "Waste tire monofill or monofill" means an approved solid
waste facility where no solid waste except waste tires are placed
for the purpose of long term storage for eventual retrieval for
marketing purposes.
(13) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse, recycling and/or marketing.
(14) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§22-15A-3. West Virginia litter control and recycling programs;
transfer of programs and employees; additional duties
of Secretary; grants to counties and municipalities;
and rules relating thereto.
(a) On and after the first day of July, two thousand five, the
litter control and recycling programs heretofore operated and
managed by the Division of Natural Resources shall transfer to the
Department of Environmental Protection.
With the transfer of the West Virginia Litter Control and
Recycling Programs from the jurisdiction of the Division of Natural
Resources to the jurisdiction of the Department of Environmental
Protection, all records, assets and contracts, along with rights
and obligations thereunder, obtained or signed on behalf of the
Litter Control and Recycling Programs are hereby transferred and
assigned to the Department of Environmental Protection.
(b) The Commissioner of the Division of Natural Resources and
the Secretary of the Department of Environmental Protection shall
determine which employees of the Division of Natural Resources will be transferred to the Department of Environmental Protection. All
employees including administrators of the litter control and
recycling programs are subject to being transferred to the
Department of Environmental Protection. Employees in the
classified service who have gained permanent status as of the
effective date of this article, enacted during the two thousand
five regular session of the Legislature, will not be subject to
further qualifying examination in their respective classifications
by reason of the transfer required by the provisions of this
section. Nothing contained in this section may 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. The Division of Personnel
shall work with the Commission and Secretary to efficiently
transfer employees from the Division of Natural Resources to the
Department of Environmental Protection.
(c) In addition to all other powers, duties and
responsibilities granted and assigned to the Secretary of the
Department of Environmental Protection in this chapter and
elsewhere by law, the Secretary, in the administration of the West
Virginia Litter Control Program created by this section, shall:
(1) Coordinate all industry and business organizations seeking
to aid in the litter control and recycling effort;
(2) Cooperate with all local governments to accomplish
coordination of local litter control and recycling efforts;
(3) Encourage, organize, coordinate and increase public
awareness of and participation in all voluntary litter control and
recycling campaigns, including citizen litter watch programs,
seeking to focus the attention of the public on the litter control
and recycling programs of the state and local governments and of
private recycling centers;
(4) Assist county commissions and county sheriffs in
establishing a voluntary litter reporting programs, which shall
utilize trained volunteers to report and collect information
necessary to enable county sheriffs to issue citations to persons
violating the litter laws of this state. The scope of duty of a
volunteer participating in the litter reporting program may
include: Reporting the motor vehicle registration plate number,
the date, time and location of a person observed littering;
collecting other evidence as may be requested by the county
sheriff, including taking photographs of a litter site; providing
testimony in court proceedings as to litter violations observed or
evidence collected by the volunteer; and providing other assistance
in litter enforcement as may be requested by the county sheriff, except that in no event may a volunteer participate in the direct
apprehension or arrest of a litter violator. The county sheriff
with the assistance of the law-enforcement section of the Division
of Natural Resources, shall provide a training course for
volunteers to instruct them in proper reporting procedures and the
collection of evidence, and may provide reporting forms for
volunteers to record their observations of litter violations. Upon
completion of the course and approval from the county sheriff, a
volunteer may begin participation in the program. Volunteers
participating in the program are responsible for providing their
own vehicles, gasoline, cameras, cell phones and other items they
may use while participating in the program, and are responsible for
other incidental expenses they may incur in the course of
participating in the program. The Commissioner of the Division of
Highways may cause appropriate signs to be placed along primary and
secondary highways to inform motorists of the volunteer litter
reporting program;
(5) Recommend to local governing bodies that they adopt
ordinances similar to the provisions of section four of this
article;
(6) Investigate the methods and success of techniques of
litter control, removal and disposal utilized in other states, and
develop, encourage, organize and coordinate local litter control programs funded by grants awarded pursuant to subsection (d) of
this section utilizing such successful techniques;
(7) Investigate the availability of, and apply for, funds
available from any and all private or public sources to be used in
the litter control program created by this section;
(8) Attract to the state persons or industries that purchase,
process or use recyclable materials; and
(9) Contract for the development, production and broadcast of
radio and television messages promoting the West Virginia Litter
Control Program. The messages should increase public awareness of
and promote citizen responsibility toward the reduction of litter.
(d) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code establishing criteria for
awarding direct or matching grants for the study of available
research and development in the fields of litter control, removal
and disposal, methods for the implementation of such research and
development, and the development of public educational programs
concerning litter control is hereby transferred from the Division
of Natural Resources to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature: Provided, That any rule promulgated by the
Division of Natural Resources relating to such grants shall remain in force and effect as though promulgated by the Department of
Environmental Protection until the Secretary amends the rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code.
(e) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code designating public areas
where litter receptacles shall be placed and the minimum number of
litter receptacles in accordance with subsection (g), section four
of this article is hereby transferred from the Division of Natural
Resources to the Secretary of the Department of Environmental
Protection as of the effective date of enactment of this section
and article during the two thousand five session of the
Legislature. Any rule promulgated by the Division of Natural
Resources relating to littering receptacles shall remain in effect
as if promulgated by the Secretary until amended by the Secretary.
(f) Commencing on the first day of July, two thousand five,
the Secretary shall expend annually at least fifty percent of the
moneys credited to the Litter Control Fund in the previous fiscal
year for matching grants to counties and municipalities for the
initiation and administration of litter control programs. The
Secretary shall promulgate rules pursuant to article three, chapter
twenty-nine-a of this code establishing criteria for the awarding
of matching grants.
(g) The Secretary of the Department of Environmental
Protection in cooperation with the Commissioner of Highways, the
Department of Commerce, the West Virginia State Police, the United
States Forestry Service and other local, state and federal
law-enforcement agencies shall be responsible for the
administration and enforcement of all laws and rules relating to
the maintenance of cleanliness and improvement of appearances on
and along highways, roads, streets, alleys and any other private or
public areas of the state. These other agencies shall make
recommendations to the Secretary, from time to time, concerning
means and methods of accomplishing litter control consistent with
the provisions of this chapter. Such cooperation shall include,
but not be limited to, contracts with the Commissioner of Highways
to operate a litter control program.
(h) All other state agencies and local governments shall
cooperate with the Secretary in effecting the purposes of the
litter control program.
§22-15A-4. Unlawful disposal of litter; civil and criminal
penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations
.
(a) (1) No person shall place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown any litter as defined in section two of this article, in or upon any public or private
highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter
from a motor vehicle or other conveyance or to perform any act
which constitutes a violation of the motor vehicle laws contained
in section fourteen, article fourteen, chapter seventeen-c of this
code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a
motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor vehicle,
boat, airplane or other conveyance intended to violate the
provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred pounds
in weight or twenty-seven cubic feet in size, is guilty of a
misdemeanor. Upon conviction, he or she is subject to a fine of not less than fifty dollars nor more than one thousand dollars, or
in the discretion of the court, sentenced to perform community
service by cleaning up litter from any public highway, road,
street, alley or any other public park or public property, or
waters of the state, as designated by the court, for not less than
eight nor more than sixteen hours, or both.
(5) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in size
is guilty of a misdemeanor. Upon conviction he or she is subject
to a fine of not less than five hundred dollars nor more than two
thousand dollars, or in the discretion of the court, may be
sentenced to perform community service by cleaning up litter from
any public highway, road, street, alley or any other public park or
public property, or waters of the state, as designated by the
court, for not less than sixteen nor more than thirty-two hours, or
both.
(6) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter in an amount greater than five hundred pounds in weight or two hundred sixteen cubic feet in
size or any amount which had been collected for commercial
purposes, is guilty of a misdemeanor. Upon conviction the person
is subject to a fine not less than twenty-five hundred dollars or
not more than twenty-five thousand dollars, or confinement in a
county or regional jail for not more than one year or both. In
addition, the violator may be guilty of creating or contributing to
an open dump as defined in section two, article fifteen, chapter
twenty-two of this code and subject to the enforcement provisions
of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by
environmental inspectors from the Department of Environmental
Protection. Any defendant receiving the sentence of litter cleanup
shall provide, within a time to be set by the court, written
acknowledgment from an environmental inspector that the sentence
has been completed and the litter has been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter cleanup
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the original fines and community service penalties originally ordered
by the court.
(10) All law-enforcement agencies, officers and environmental
inspectors shall enforce compliance with this section within the
limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or
lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter
twenty-two of this code. But if any owner, renter or lessee,
private or otherwise, knowingly permits any such materials or
substances to be placed, deposited, dumped or thrown in such
location that high water or normal drainage conditions will cause
any such materials or substances to wash into any waters of the
state, it is prima facie evidence that the owner, renter or lessee
intended to violate the provisions of this section: Provided, That
if a landowner, renter or lessee, private or otherwise, reports any
placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney,
county commission, the Division of Natural Resources or the
Department of Environmental Protection, the landowner, renter or
lessee will be presumed to not have knowingly permitted the placing, depositing, dumping or throwing of the materials or
substances.
(b) Any indication of ownership found in litter shall be prima
facie evidence that the person identified violated the provisions
of this section: Provided, That no inference may be drawn solely
from the presence of any logo, trademark, trade name or other
similar mass reproduced things of identifying character appearing
on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section
shall pay a civil penalty in the sum of not less than one hundred
dollars nor more than one thousand dollars as costs for cleanup,
investigation and prosecution of the case, in addition to any other
court costs that the court is otherwise required by law to impose
upon a convicted person.
The clerk of the circuit court, magistrate court or municipal
court in which these additional costs are imposed shall, on or
before the last day of each month, transmit fifty percent of a
civil penalty received pursuant to this section to the State
Treasurer for deposit in the State Treasury to the credit of a
special revenue fund to be known as the Litter Control Fund which
is hereby continued and transferred to the Department of
Environmental Protection. Expenditures for purposes set forth in this section are not authorized from collections but are to be made
only in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code. Amounts collected which are found from time
to time to exceed the funds needed for the purposes set forth in
this article may be transferred to other accounts or funds and
designated for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the county
or regional solid waste authority for the purpose of litter
prevention, cleanup and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving
the respective county to develop a coordinated litter control
program pursuant to section eight, article four, chapter
twenty-two-c of this code.
(e) The Commissioner of the Division of Motor Vehicles, upon
registering a motor vehicle or issuing an operator's or chauffeur's
license, shall issue to the owner or licensee, as the case may be,
a summary of this section and section fourteen, article fourteen,
chapter seventeen-c of the code.
(f) The Commissioner of the Division of Highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the Secretary by rule promulgated pursuant to subdivision (8),
subsection (a), section three of this article shall procure and
place litter receptacles at its own expense upon its premises and
shall remove and dispose of litter collected in the litter
receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the rules of the Secretary, any state agency or political
subdivision that fails to place and maintain the litter receptacles
upon its premises in violation of this subsection or the rules of
the Secretary shall be fined fifteen dollars per day of the
violation.
§22-15A-5. Litter pickup and removal; education; government
recycling responsibilities; monitoring and
evaluation; study commission; repeal; report to
Legislature.
(a) Litter pickup and removal. -
(1) Each county commission and the Regional Jail Authority may
establish a jail or prison inmate program including a regular
litter pickup work regimen under proper supervision pursuant to
section four, article fifteen, chapter seventeen of this code.
Funding for these programs shall be from the Litter Control Fund.
Funding requirements may include salaries for additional personnel
needed for the program. The program may include the cooperative
help of the Division of Highways or any other voluntary state,
local, private, civic or public agency for personnel, equipment, or
materials in establishing a county or regionwide, continual program
of inmate litter pickup. Upon final approval of the projected cost
of the program for a given fiscal year, the Secretary shall
disburse the approved amount to the county or Regional Jail
Authority. The funds will be used by the Authority to reimburse
the county commission or Regional Jail Authority for its expenses
related to the program and to pay other costs related to the use of
inmates for litter pickup. Nothing contained herein shall preclude
a county or counties from expending whatever additional funds its
commission or commissions may deem appropriate from any other
revenue source in furtherance of said program.
(2) All persons involved with litter pickup may separate
identifiable recyclable materials from other litter collected. The funds resulting from the sale of those recyclable materials shall
be returned to the Litter Control Fund.
(3) The county or regional solid waste authority may also
contract with local governments, civic organizations or chief
correctional officers in any county to implement litter pickup and
removal pursuant to this act when the state offender work force is
not available. In such cases, the contract provisions shall
require that identifiable recyclable materials shall be separated
from other litter collected, with resulting funds returned to the
Litter Control Fund. Priority shall be given to those contracts
that maximize the use of community service hours by inmates and
youth employment programs.
(b) Education. -
(1) The Department of Education in cooperation with the
Department of Environmental Protection shall distribute educational
materials to the schools based on the goals of litter clean up and
proper solid waste disposal, the rationale for the goals and how
primary and secondary school students can contribute to the
achievement of the goals. The Department of Education shall
further incorporate this information into the curriculum of the
public school system as appropriate.
(2) The Division of Highways and local governments shall
conduct public awareness programs to notify the public of the provisions of this law and how they can participate, to inform them
as to the rationale behind the provisions of this law, to advise
them of other avenues for achievement of the noted goals and to
encourage their participation.
(3) The Department of Environmental Protection and the Solid
Waste Management Board shall provide technical assistance to local
governments in the implementation of this law.
(c) Government recycling responsibilities. -
(1) All state agencies and regional planning councils may
establish and implement aluminum container, glass and paper
recycling programs at their public facilities. To the extent
practicable, programs for other metals, plastics, rubber and other
recyclable materials may be established and implemented. The
moneys collected from the sale of such materials shall be deposited
and accounted for in the Litter Control Fund pursuant to the
authority of section four of this article.
(2) To further promote recycling and reduction of the waste
stream, county and municipal governments shall consider the
establishment of recycling programs as provided in this section in
the operation of their facilities and shall evaluate the cost-
effectiveness of:
(A) Procedures that separate identifiable recyclable materials
from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at
all landfills and other interim solid waste collection sites and
arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to
participate;
(iii) The use of rate differentials at landfills to facilitate
public participation in on-site recycling programs.
(d) Each affected agency and local government shall monitor
and evaluate the programs implemented pursuant to this law.
(e) The Secretary shall submit a report to the Speaker of the
House and the President of the Senate not later than the first day
of March, two thousand six, and every five years thereafter
regarding the effectiveness of the programs authorized by this law.
§22-15A-6. Assistance to solid waste authorities.
The Secretary may expend funds from the Litter Control Fund
established pursuant to section four of this article to assist
county and regional solid waste authorities in the formulation of
their comprehensive litter and solid waste control plans pursuant
to section eight, article four, chapter twenty-two-c of this code
and in the construction and maintenance of approved commercial
solid waste facilities authorities which would in the opinion of
the Secretary be unable to construct or maintain an approved commercial solid waste facility without grant funds.
§22-15A-7. Pollution prevention and open dumps.
(a) The Secretary shall establish the Pollution Prevention and
Open Dump (PPOD) Program to encourage the proper disposal of
commercial and residential solid waste and to undertake all
reclamation, cleanup and remedial actions necessary to minimize or
mitigate damage to the environment, natural resources, public water
supplies, water resources and the public health, safety and welfare
which may result from open dumps or solid waste not disposed of in
a proper or lawful manner. The program shall seek to eliminate
open dumps, which often include waste tires and to recycle as many
items as possible from these reclamation efforts. This program
shall be funded through the Solid Waste Reclamation and
Environmental Response Fund established in section eleven, article
fifteen of this chapter.
(b) Authorized representatives of the Department have the
right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of an open dump,
to determine the feasibility of the reclamation or prevention of
such adverse effects and to conduct reclamation activities provided
herein. Such entry is an exercise of the police power of the state
and for the protection of public health, safety and general welfare and is not an act of condemnation of property or trespass thereon.
Nothing contained in this section eliminates any obligation to
follow any process that may be required by law.
§22-15A-8. Waste tires prohibited in certain places; penalty.
The Waste Tire Remediation Program heretofore under the
jurisdiction of the Division of Highways is transferred to the
Department of Environmental Protection effective upon enactment of
this article by the Legislature during the regular session of two
thousand five.
(a) No person shall, within this state, place, deposit or
abandon any waste tire or part thereof upon the right-of-way of any
public highway or upon any other public property nor deposit or
abandon any waste tire or part thereof upon any private property
unless it is at a licensed monofill, solid waste facility or at any
other business authorized by the Department of Environmental
Protection to accept, process, manufacture or remanufacture waste
tires: Provided, That the Secretary may temporarily accumulate as
many waste tires as he or she deems necessary at any location or
locations necessary to effectuate the purposes of this article.
(b) No person, except those persons who have received and
maintain a valid permit or license from the state for the operation
of a solid waste facility, waste tire monofill, waste tire
processing facility, or other such permitted activities, shall accumulate more than one hundred waste tires for beneficial use
without obtaining a license or permit from the Department of
Environmental Protection.
(c) Any person who violates any provision of this section
shall be guilty of creating an open dump and subject to enforcement
actions or prosecution under the provisions of article fifteen of
this chapter.
§22-15A-9.
Creation of the A. James Manchin Fund; proceeds from
sale of waste tires; fee on issuance of certificate
of title.
(a) There is continued in the State Treasury a special revenue
fund known as the A. James Manchin Fund. All moneys appropriated,
deposited or accrued in this Fund shall be used exclusively for
remediation of waste tire piles as required by this article, for
the tire disposal program established under section ten of this
article or for the purposes of subsection (h), section ten of this
article or for the purposes of subsection (c), section eleven of
this article. The Commissioner of the Division of Highways shall
work with and may use moneys in the fund to contract with the
Secretary of the Department of Environmental Protection to
accomplish the remediation of waste tire piles. The Fund consists
of the proceeds from the sale of waste tires; fees collected by the
Division of Motor Vehicles as provided in section sixteen, article ten, chapter seventeen-a of this code; any federal, state or
private grants; legislative appropriations; loans; and any other
funding source available for waste tire remediation. Any
unprogrammed balance remaining in the Fund at the end of any state
fiscal year shall be transferred to the state road fund.
(b) No further collections or deposits shall be made after the
Commissioner of the Division of Highways certifies to the Governor
and the Legislature that the remediation of all waste tire piles
that were determined by the Commissioner to exist on the first day
of July, two thousand one, has been completed and that all
infrastructure bonds issued by the Water Development Authority
pursuant to section seventeen-a, article fifteen-a, chapter
thirty-one of this code have been paid in full or legally defeased.
(c) If infrastructure bonds are not 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 on or before the thirty-first day
of December, two thousand six, all further collections and deposits
to the A. James Manchin Fund which are not programmed for
remediation or disposal shall be transferred to the state road fund
at the end of each fiscal year.
§22-15A-10. Department to administer funds for waste tire remediation; rules authorized; duties of Secretary.
(a) The Department shall administer all funds made available
to the Department by legislative appropriation or by funds made
available by the Division of Highways, as well as federal, state or
private grants for remediation of waste tire piles and for the
proper disposal of waste tires removed from waste tire piles.
(b) All authority to promulgate legislative rules necessary to
implement the provisions of this article is hereby transferred from
the Division of Highways to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature. Any legislative rules promulgated by the
Commissioner of the Division of Highways in furtherance of the
waste tire remediation program established in former article
twenty-four, chapter seventeen of this code shall remain in force
and effect as if promulgated by the Secretary until they are
amended in accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(c) The Secretary 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.
(d) On or before the first day of July, two thousand six, the
Secretary 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 Secretary 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 upon the discovery
of any potentially hazardous material at a remediation site. The
Department shall respond to the discovery in accordance with the
provisions of article nineteen of this chapter.
(g) The Secretary may establish a tire disposal program within
the Department to provide for a cost effective and efficient method
to accept passenger car and light truck waste tires at locations
designated by the Department that have sufficient space for
temporary storage of waste tires and personnel to accept and handle waste tires. The Secretary may pay a fee for each tire an
individual West Virginia resident or West Virginia business brings
to the Department. The Secretary may establish a limit on the
number of tires an individual or business may be paid for during
any calendar month. The Secretary 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 of the division of highways 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 nine 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 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
development shall determine that the waste tire processing facility
is a viable economic development project of benefit to the state's
economy.
§22-15A-11. Disposal of waste tires.
(a) The Department may sell waste tires collected during
remediation of waste tire piles at public auction or to a waste
tire monofill, waste tire processing facility or business
authorized by the Department of Environmental Protection to accept,
store, use or process waste tires.
(b) If there is no market in West Virginia for the sale of
waste tires the Department may sell them at any available market.
(c) If there is no market for the sale of waste tires the
Department may dispose of them in any lawful manner.
§22-15A-12.
Remediation; liability for remediation and court
costs.
(a) Any person who has, prior or subsequent to the effective
date of this act, illegally disposed of waste tires or has waste
tires illegally disposed on his or her property shall be liable
for:
(1) All costs of removal or remedial action incurred by the
Division;
(2) Any other necessary costs of remediation, including
properly disposing of waste tires and damage to adjacent property
owners; and
(3) All costs incurred in bringing civil actions under this
article.
(b) The Department shall notify any person who owns real
property or rights to property where a waste tire pile is located
that remediation of the waste tire pile is necessary. The
Department shall make and enter an order directing such person or
persons to remove and properly dispose of the waste tires. The
Department shall set a time limit for completion of the
remediation. The order shall be served by registered or certified
mail, return receipt requested, or by a county sheriff or deputy
sheriff.
(c) If the remediation is not completed within the time limit
or the person cannot be located or the person notifies the
Department that he or she is unable to comply with the order, the
Department may expend funds, as provided herein, to complete the
remediation. Any amounts so expended shall be promptly repaid by
the person or persons responsible for the waste tire pile. Any
person owing remediation costs or damages shall be liable at law until such time as all costs or damages are fully paid.
(d) Authorized representatives of the Department have the
right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of a waste tire
pile, to determine the feasibility of the remediation or prevention
of such adverse effects and to conduct remediation activities
provided herein. Such entry is an exercise of the police power of
the state and for the protection of public health, safety and
general welfare and is not an act of condemnation of property or
trespass thereon. Nothing contained in this section eliminates any
obligation to follow any process that may be required by law.
(e) There is hereby created a statutory lien upon all real
property and rights to the property from which a waste tire pile
was remediated for all reclamation costs and damages incurred by
the Department. The lien created by this section shall arise at
the later of the following:
(1) The time costs are first incurred by the Department; or
(2) The time the person is provided, by certified or
registered mail or personal service, written notice as required by
this section.
The lien shall continue until the liability for the costs or
judgment against the property is satisfied.
(f) Any person, who is a bona fide purchaser of real property
prior to the first day of July, two thousand one, who did not
cause, permit or profit from the illegal disposal of waste tires on
the property is only liable for the costs of remediation to the
extent that the fair market value of the property, when remediation
is completed, exceeds the fair market value of the property that
existed on the first day of July, two thousand one. The Department
shall have a cause of action against any previous owner who caused,
permitted, contributed or profited from the illegal disposal of
waste tires on the property for the difference in the amount
recovered from the purchaser and the cost of remediation.
(g) Liens created by this section shall be duly recorded in
the office of the clerk of the county commission in the county
where the real property is located and be liens of equal dignity,
rank and priority with the lien on such premises of state, county,
school and municipal taxes for the amount thereof upon the real
property served. The Department shall have the power and authority
to enforce such liens in a civil action to recover the money due
for remediation costs and damages plus court fees and costs and
reasonable attorney's fees.
(h) The Department may foreclose upon the premises by bringing
a civil action, in the circuit court of the county where the
property is located, for foreclosure and an order to sell the property to satisfy the lien.
(i) Any proceeds from any sale of property obtained as a
result of execution of a lien or judgment under this section for
remediation costs, excluding costs of obtaining judgment and
perfecting the lien, shall be deposited into the A. James Manchin
Fund of the State Treasury.
(j) The provisions of this section do not apply and no lien
may attach to the right-of-way, easement or other property interest
of a utility, whether electric, gas, water, sewer, telephone,
television cable or other public service, unless the utility
contributed to the illegal tire pile.
(k) Upon determining the existence of a waste tire pile, the
Department shall file a notice of the location of the waste tire
pile in the office of the county clerk in the county where property
containing a waste tire pile is situate. The Department shall
immediately file the notice for all property known to have waste
tire piles as of the day the Legislature enacted the amendment to
this section during the two thousand five legislative session. The
notice shall contain the property owner's name, a location and
description of the property and the waste tire pile and the
potential liability for remediation. The county clerk shall record
the notice in the same manner as a lien and index the notice by the
name of the property owner.
§22-15A-13. Injunctive relief; additional remedy.
In addition to all other remedies provided in this article,
the Attorney General of this state, the Department, the prosecuting
attorney of any county where any violation of any provision of this
article occurs, or any citizen, resident or taxpayer of the county
where any violation of any provision of this article occurs, may
apply to the circuit court, or the judge thereof in vacation, of
the county where the alleged violation occurred, for an injunction
to restrain, prevent or abate the maintenance and storage of waste
tires in violation of any provision of this article, or the
violation of any other provision of this article. In seeking an
injunction, it is not necessary for the Secretary or any state
agency seeking an injunction under this section to post bond.
§22-15A-14. Authority of Commissioner of Bureau of Public Health.
Although the Secretary is primarily responsible for
remediation of waste tire piles under the provisions of this
article, the Commissioner of the Bureau for Public Health may
enforce the public health laws in any instance where the
Commissioner of the Bureau for Public Health determines there is an
imminent and substantial endangerment to the public health.
§22-15A-15. Continuation of waste tire remediation program.
The waste tire remediation program shall continue to exist,
pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand six, unless sooner
terminated, continued or reestablished pursuant to the provisions
of that article.
§22-15A-16. Recycling goals.
By the first day of January, two thousand ten, it is the goal
of this state to reduce the disposal of municipal solid waste by
fifty percent of the amount of per capita solid waste disposed of
in one thousand nine hundred ninety-one.
§22-15A-17. Recycling plans.
(a) Each county or regional solid waste authority, as part of
the comprehensive litter and solid waste control plan required
pursuant to the provisions of section eight, article four, chapter
twenty-two-c of this code, shall prepare and adopt a comprehensive
recycling plan to assist in the implementation of the recycling
goals in section sixteen of this article.
(b) Each recycling plan required by this section shall
include, but not be limited to:
(1) Designation of the recyclable materials that can be most
effectively source separated in the region or county, which shall
include at least three recyclable materials; and
(2) Designation of potential strategies for the collection,
marketing and disposition of designated source separated recyclable
materials in each region or county.
§22-15A-18. Establishment of county recycling programs for solid
waste; petition for referendum; ballot contents;
election procedure; effect of such election.
(a) On or before the eighteenth day of October, one thousand
nine hundred ninety-two, each municipality described in subsection
(b) of this section shall submit a proposal to the Solid Waste
Management Board, consistent with the provisions of this section,
describing the establishment and implementation of the mandatory
recycling program. The Solid Waste Management Board shall review
the submitted plans for consistency with the criteria provided in
this section, the county or regional solid waste management plan
and the statewide management plan. The Solid Waste Management
Board may make suggested changes to the plan and shall provide
technical assistance to the municipalities in the development of
the plans.
(b) On or before the eighteenth day of October, one thousand
nine hundred ninety-three, each municipality with a population of
ten thousand or more people, as determined by the most recent
decennial census by the Bureau of the Census of the United States
Department of Commerce, shall establish and commence implementation
of a source separation and curbside collection program for
recyclable materials. Implementation shall be phased in by the
first day of July, one thousand nine hundred ninety-five. Such program shall include, at a minimum, the following:
(1) An ordinance adopted by the governing body of the
municipality requiring that each person, partnership, corporation
or other entity in the municipality shall separate at least three
recyclable materials, as deemed appropriate by the municipality,
from other solid waste: Provided, That the list of recyclables to
be separated may be adjusted according to whether the generator is
residential, commercial or other type of establishment.
(2) A scheduled day, at least one per month, during which
separated materials are to be placed at the curbside, or similar
location, for collection.
(3) A system that collects recyclable materials from the
curbside, or similar location, at least once per month: Provided,
That to encourage full participation, the program shall, to the
maximum extent possible, provide for the collection of recyclables
at the same rate of frequency, and simultaneous with, the regular
collection of solid waste.
(4) Provisions to ensure compliance with the ordinance,
including incentives and penalties.
(5) A comprehensive public information and education program
covering the importance and benefits of recycling, as well as the
specific features and requirements of the recycling program. As
part of the education program, each municipality shall, at a minimum, notify all persons occupying residential, commercial,
institutional or other premises within its boundaries of the
requirements of the program, including how the system will operate,
the dates of collection, the responsibilities of persons within the
municipality and incentives and penalties.
(6) Consultation with the county or regional solid waste
authority in which the municipality is located to avoid
duplication, ensure coordination of solid waste programs and
maximize the market for recyclables.
(c) Notwithstanding the provisions of subsection (b) of this
section, a comprehensive recycling program for solid waste may be
established in any county of this state by action of a county
commission in accordance with the provisions of this section. Such
program shall require:
(1) That, prior to collection at its source, all solid waste
shall be segregated into separate identifiable recyclable materials
by each person, partnership, corporation and governmental agency
subscribing to a solid waste collection service in the county or
transporting solid waste to a commercial solid waste facility in
the county;
(2) Each person engaged in the commercial collection,
transportation, processing or disposal of solid waste within the
county shall accept only solid waste from which recyclable materials in accordance with the county's comprehensive recycling
program have been segregated; and
(3) That the provisions of the recycling plan prepared
pursuant to section seventeen of this article shall, to the extent
practicable, be incorporated in the county's comprehensive
recycling program.
(d) For the purposes of this article, recyclable materials
shall include, but not be limited to, steel and bimetallic cans,
aluminum, glass, paper and such other solid waste materials as may
be specified by either the municipality or county commission with
the advice of the county or regional solid waste authority.
(e) A comprehensive recycling program for solid waste may be
established in any county of this state by: (1) A petition filed
with the county commission bearing the signatures of registered
voters of the county equal to not less than five percent of the
number of votes cast within the county for Governor at the
preceding gubernatorial election; and (2) approval by a majority of
the voters in a subsequent referendum on the issue. A referendum
to determine whether it is the will of the voters of a county that
a comprehensive recycling program for solid waste be established in
the county may be held at any regular primary or general election
or in conjunction with any other countywide election. Any election
at which the question of establishing a policy of comprehensive recycling for solid waste is voted upon shall be held at the voting
precincts established for holding primary or general elections.
All of the provisions of the general election laws, when not in
conflict with the provisions of this article, shall apply to voting
and elections hereunder, insofar as practicable. The Secretary of
State shall prescribe the form of the petition which shall include
the printed name, address and date of birth of each person whose
signature appears on the petition. Upon verification of the
required number of signatures on the petition, the county
commission shall, not less than seventy days before the election,
order that the issue be placed on the ballot and referendum held at
the next primary, general or special election to determine whether
it is the will of the voters of the county that a policy of
comprehensive recycling of solid waste be established in the
county: Provided, That the petition bearing the necessary
signatures has been filed with the county commission at least one
hundred days prior to the election.
The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the County Commission be required to establish a
comprehensive recycling program for solid waste in __________
County, West Virginia?
? For Recycling
? Against Recycling
(Place a cross mark in the square opposite your choice.)"
If a majority of legal votes cast upon the question be for the
establishment of a policy of comprehensive recycling of solid
waste, the county commission shall, after the certification of the
results of the referendum, thereafter adopt an ordinance, within
one hundred eighty days of certification, establishing a
comprehensive recycling program for solid waste in the county:
Provided, That such program shall be implemented and operational no
later than twelve months following certification. If a majority of
the legal votes cast upon the question be against the establishment
of a policy of comprehensive recycling of solid waste, the policy
shall not take effect, but the question may again be submitted to
a vote at any subsequent election in the manner herein provided.
(f) A comprehensive recycling program for solid waste
established by petition and referendum may be rescinded only
pursuant to the procedures set out herein to establish the program.
To rescind the program, the ballot, or the ballot labels where
voting machines are used, shall have printed thereon substantially
the following:
"Shall the County Commission be required to terminate the
comprehensive recycling program for solid waste in ___________
County, West Virginia?
? Continue Recycling
? End Recycling
(Place a cross mark in the square opposite your choice.)"
(g) If a majority of legal votes cast upon the question be for
the termination of a policy of comprehensive recycling of solid
waste previously established in the county, the county commission
shall, after the certification of the results of the referendum,
thereafter rescind by ordinance the comprehensive recycling program
for solid waste in the county within ninety days of certification.
If a majority of the legal votes cast upon the question be for the
continuation of the policy of comprehensive recycling of solid
waste, the ordinance shall not be rescinded, but the question may
again be submitted to a vote at any subsequent election in the
manner herein provided.
(h) In the case of any municipality having a population
greater than thirty thousand persons, as indicated by the most
recent decennial census conducted by the United States, the
governing body of such municipality may by ordinance establish a
materials recovery facility in lieu of or in addition to the
mandatory recycling program required under the provisions of this
section: Provided, That a materials recovery facility shall be
subject to approval by both the Public Service Commission and the
Solid Waste Management Board upon a finding by both the Public Service Commission and the Solid Waste Management Board that the
establishment of a materials recovery facility will not hinder, and
will be consistent with, the purposes of this article.
§22-15A-19. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a) Imposition. -- A recycling assessment fee is hereby levied
and imposed upon the disposal of solid waste at all solid waste
disposal facilities in this state, to be collected at the rate of
two dollars per ton or part of a ton of solid waste. The fee
imposed by this section is in addition to all other fees levied by
law.
(b) Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility shall
pay the fee imposed by this section, whether or not that person
owns the solid waste, and the fee shall be collected by the
operator of the solid waste facility who shall remit it to the Tax
Commissioner:
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility;
(2) The operator shall remit the fee imposed by this section
to the Tax Commissioner on or before the fifteenth day of the month
next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms and in the manner as prescribed by the Tax Commissioner;
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the Tax Commissioner;
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for the amount that he or
she failed to collect, plus applicable additions to tax, penalties
and interest imposed by article ten, chapter eleven of this code;
(5) Whenever any operator fails to collect, truthfully account
for, remit the fee or file returns with the fee as required in this
section, the Tax Commissioner may serve written notice requiring
the operator to collect the fees which become collectible after
service of the notice, to deposit the fees in a bank approved by
the Tax Commissioner, in a separate account, in trust for and
payable to the Tax Commissioner, and to keep the amount of the fees
in the account until remitted to the Tax Commissioner. The notice
remains in effect until a notice of cancellation is served on the
operator or owner by the Tax Commissioner;
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for remittance
of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations
under this section, the owner and the operator of the solid waste
facility are jointly and severally responsible and liable for
compliance with the provisions of this section;
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers of the association or corporation are liable, jointly and
severally, for any default on the part of the association or
corporation, and payment of the fee and any additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code may be enforced against them and against the association
or corporation which they represent; and
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records in
the form required by the Tax Commissioner in accordance with the
rules of the Tax Commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the Public Service
Commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the Public Service Commission shall, within fourteen days, reflect the cost of
the fee in the motor carrier's rates for solid waste removal
service. In calculating the amount of the fee to the motor
carrier, the Commission shall use the national average of pounds of
waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definition. -- For purposes of this section, "Solid waste
disposal facility" means any approved solid waste facility or open
dump in this state and includes a transfer station when the solid
waste collected at the transfer station is not finally disposed of
at a solid waste facility within this state that collects the fee
imposed by this section.
Nothing in this section authorizes in any way the creation or
operation of or contribution to an open dump.
(e) Exemptions. -- The following transactions are exempt from
the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by that person in his or her regular business or personal
activities or by persons utilizing the facility on a cost-sharing
or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on the days
and times designated by the Secretary by rule as exempt from the
fee imposed pursuant to section eleven, article fifteen, chapter
twenty-two of this code.
(f) Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code applies
to the fee imposed by this section with like effect as if the Act
were applicable only to the fee imposed by this section and were
set forth in extenso in this section.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, inclusive, article nine, chapter eleven of this code
apply to the fee imposed by this section with like effect as if the
sections were the only fee imposed by this section and were set
forth in extenso in this section.
(h) Dedication of proceeds. -- The proceeds of the fee
collected pursuant to this section shall be deposited by the Tax
Commissioner, at least monthly, in a special revenue account
designated as the "Recycling Assistance Fund" which is hereby
continued and transferred to the Department of Environmental Protection. The Secretary shall allocate the proceeds of the fund
as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs and recycling market procurement efforts,
established pursuant to this article. The Secretary shall
promulgate rules, in accordance with chapter twenty-nine-a of this
code, containing application procedures, guidelines for
eligibility, reporting requirements and other matters considered
appropriate: Provided, That persons responsible for collecting,
hauling or disposing of solid waste who do not participate in the
collection and payment of the solid waste assessment fee imposed by
this section in addition to all other fees and taxes levied by law
for solid waste generated in this state which is destined for
disposal, shall not be eligible to receive grants under the
provisions of this article;
(2) Twelve and one-half percent of the total proceeds shall be
expended for personal services and benefit expenses of full-time
salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall be
directly allocated to the solid waste planning fund;
(4) Twelve and one-half percent of the total proceeds shall be transferred to the solid waste reclamation and environmental
response fund, established pursuant to section eleven, article
fifteen, chapter twenty-two of this code, to be expended by the
Department of Environmental Protection to assist in the funding of
the pollution prevention and open dumps program (PPOD) which
encourages recycling, reuse, waste reduction and clean-up
activities; and
(5) Twelve and one-half
percent of the total proceeds shall be
deposited in the hazardous waste emergency response fund
established in article nineteen, chapter twenty-two of this code.
§22-15A-20. Establishment of state recycling program for solid
waste.
(a) In the absence of either a municipal or a comprehensive
county recycling plan pursuant to section eighteen of this article,
all agencies and instrumentalities of the state, all primary and
secondary schools, where practicable, and private colleges and
universities shall implement programs to recycle solid waste. To
carry out the purposes of this section, any affected party may be
eligible to receive grants pursuant to subdivision (1), subsection
(h), section nineteen of this article. Such programs shall
include, but not be limited to, the following:
(1) Source separation of at least two recyclable materials;
and
(2) In the absence of either a municipal program or a
comprehensive county recycling plan pursuant to section eighteen of
this article, collection and transportation of source separated
recycled materials to an appropriate location.
(b) For purposes of this section, the Department shall be
designated the lead agency to ensure proper compliance and
coordination of any such recycling program.
§22-15A-21. Procurement of recycled products.
(a) It is the policy of the State of West Virginia that, to
the maximum extent possible, all agencies and instrumentalities of
the state purchase recycled products. The goal of the state is to
achieve a recycled product mix on future purchases.
(b) In furtherance of the aforesaid goal, the Secretary of the
Department of Administration in consultation with the Secretary
shall develop a comprehensive procurement program for recycled
products. The program shall include, but not be limited to:
(1) A review, and subsequent revision, of existing procurement
procedures and bid specifications to remove language that
discriminates against recycled products;
(2) A review, and subsequent revision, of existing procurement
procedures and bid specifications to ensure that, to the maximum
extent possible, all agencies and instrumentalities of the state
purchase recycled products: Provided, That recycled paper products shall be given a price preference of ten percent: Provided,
however, That priority shall be given to paper products with the
highest postconsumer content;
(3) A plan to eliminate, to the maximum extent possible, the
use of disposable and single-use products; and
(4) A requirement that all agencies and instrumentalities of
the state use compost in all land maintenance and landscaping
activities: Provided, That the use of composted or deep stacked
poultry litter products, certified by the Commissioner of
Agriculture as being free from organisms that are not found in
poultry litter produced in this state, have priority unless
determined to be economically unfeasible by the agency or
instrumentality.
(c) The Secretary shall prepare and submit an annual report on
the thirty-first day of January of each year summarizing the
program's accomplishments, prospects for the future, and any
recommendations. The report shall be submitted to the Governor,
Speaker of the House of Delegates and President of the Senate.
§22-15A-22. Prohibition on the disposal of certain items; plans
for the proper handling of said items required.
(a) Effective the first day of June, one thousand nine hundred
ninety-four, it shall be unlawful to dispose of lead-acid batteries
in a solid waste landfill in West Virginia; effective the first day of June, one thousand nine hundred ninety-six, it shall be unlawful
to dispose of tires in a solid waste landfill in West Virginia
except for waste tires collected as part of the Department's waste
tire remediation projects or other collection efforts in accordance
with the provisions of this article or the pollution prevention
program and open dump program or other state authorized remediation
or cleanup programs: Provided, That waste tires may be disposed of
in solid waste landfills only when the state agency authorizing the
remediation or cleanup program has determined there is no
reasonable alternative available.
(b) Effective the first day of January, one thousand nine
hundred ninety-seven, it shall be unlawful to dispose of yard
waste, including grass clippings and leaves, in a solid waste
facility in West Virginia: Provided, That such prohibitions do not
apply to a facility designed specifically to compost such yard
waste or otherwise recycle or reuse such items: Provided, however,
That reasonable and necessary exceptions to such prohibitions may
be included as part of the rules promulgated pursuant to subsection
(d) of this section.
(c) No later than the first day of May, one thousand nine
hundred ninety-five, the Solid Waste Management Board shall design
a comprehensive program to provide for the proper handling of yard
waste and lead-acid batteries. No later than the first day of May, one thousand nine hundred ninety-four, a comprehensive plan shall
be designed in the same manner to provide for the proper handling
of tires.
(d) No later than the first day of August, one thousand nine
hundred ninety-five, the Department shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, as amended, to
implement and enforce the program for yard waste and lead-acid
batteries designed pursuant to subsection (c) of this section. No
later than the first day of August, two thousand, the Department
shall promulgate rules, in accordance with chapter twenty-nine-a of
said code, as amended, to implement and enforce the program for
tires designed pursuant to subsection (c) of this section.
(e) For the purposes of this section, "yard waste" means grass
clippings, weeds, leaves, brush, garden waste, shrub or tree
prunings and other living or dead plant tissues, except that such
materials which, due to inadvertent contamination or mixture with
other substances which render the waste unsuitable for composting,
shall not be considered to be yard waste: Provided, That the same
or similar waste generated by commercial agricultural enterprises
is excluded.
(f) In promulgating the rules required by subsections (c) and
(d) of this section, yard waste, as described in subsection (e) of
this section, the Department shall provide for the disposal of yard waste in a manner consistent with one or any combination of the
following:
(1) Disposal in a publicly or privately operated commercial or
noncommercial composting facility.
(2) Disposal by composting on the property from which domestic
yard waste is generated or on adjoining property or neighborhood
property if consent is obtained from the owner of the adjoining or
neighborhood property.
(3) Disposal by open burning where such activity is not
prohibited by this code, rules promulgated hereunder or municipal
or county codes or ordinances.
(4) Disposal in a publicly or privately operated landfill,
only where none of the foregoing options are available. Such
manner of disposal will involve only small quantities of domestic
yard waste generated only from the property of the participating
resident or tenant.
§22-15A-23. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
fifteen of this chapter, whose only function is to accept
free-of-charge, buy or transfer source separated material or
recycled material for resale or transfer for further processing are
exempt from the provisions of said article and article four of
chapter twenty-two-c and sections one-c and one-f, article two, chapter twenty-four of this code.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 3. SOLID WASTE MANAGEMENT BOARD.
§22C-3-7. Development of state solid waste management plan.
On or before the first day of January, one thousand nine
hundred ninety-three, the solid waste management board shall
prepare an overall state plan for the proper management of solid
waste: Provided, That such plan shall be consistent with the
findings and purposes of article four of this chapter, articles
fifteen and fifteen-a, chapter twenty-two eleven of chapter twenty
of this code: Provided, however, That such plan shall incorporate
the county or regional plans developed pursuant to sections eight
and twenty-four, article four of this chapter, as amended:
Provided further, That such plan shall be updated every two years
following its initial preparation.
§22C-3-24. Cooperation of board and enforcement agencies in
collecting and disposing of abandoned household
appliances and motor vehicles, etc.
The provisions of this article are complementary to those
contained in article twenty-four, chapter seventeen fifteen-a of
this code and do not alter or diminish the authority of any
enforcement agency, as defined in section two thereof, to collect and dispose of abandoned household appliances and motor vehicles,
inoperative household appliances and junked motor vehicles and
parts thereof, including tires. The board and such enforcement
agencies shall cooperate fully with each other in collecting and
disposing of such solid waste.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-24. Commercial solid waste facility siting plan; facilities
subject to plan; criteria; approval by solid waste
management board; effect on facility siting; public
hearings; rules.
(a) On or before the first day of July, one thousand nine
hundred ninety-one, each county or regional solid waste authority
shall prepare and complete a commercial solid waste facilities
siting plan for the county or counties within its jurisdiction:
Provided, That the Solid Waste Management Board may authorize any
reasonable extension of up to one year for the completion of the
said siting plan by any county or regional solid waste authority.
The siting plan shall identify zones within each county where
siting of the following facilities is authorized or prohibited:
(1) Commercial solid waste facilities which may accept an
aggregate of more than ten thousand tons of solid waste per month.
(2) Commercial solid waste facilities which shall accept only
less than an aggregate of ten thousand tons of solid waste per month.
(3) Commercial solid waste transfer stations or commercial
facilities for the processing or recycling of solid waste.
The siting plan shall include an explanation of the rationale
for the zones established therein based on the criteria established
in subsection (b) of this section.
(b) The county or regional solid waste authority shall develop
the siting plan authorized by this section based upon the
consideration of one or more of the following criteria: The
efficient disposal of solid waste, including, but not limited to,
all solid waste which is disposed of within the county or region
regardless of its origin, economic development, transportation
infrastructure, property values, groundwater and surface waters,
geological and hydrological conditions, aesthetic and environmental
quality, historic and cultural resources, the present or potential
land uses for residential, commercial, recreational, environmental
conservation or industrial purposes and the public health, welfare
and convenience. The initial plan shall be developed based upon
information readily available. Due to the limited funds and time
available, the initial plan need not be an exhaustive and
technically detailed analysis of the criteria set forth above.
Unless the information readily available clearly establishes that
an area is suitable for the location of a commercial solid waste facility or not suitable for such a facility, the area shall be
designated as an area in which the location of a commercial solid
waste facility is tentatively prohibited. Any person making an
application for the redesignation of a tentatively prohibited area
shall make whatever examination is necessary and submit specific
detailed information in order to meet the provision established in
subsection (g) of this section.
(c) Prior to completion of the siting plan, the county or
regional solid waste authority shall complete a draft siting plan
and hold at least one public hearing in each county encompassed in
said draft siting plan for the purpose of receiving public comment
thereon. The authority shall provide notice of such public
hearings and encourage and solicit other public participation in
the preparation of the siting plan as required by the rules
promulgated by the Solid Waste Management Board for this purpose.
Upon completion of the siting plan, the county or regional solid
waste authority shall file said plan with the Solid Waste
Management Board.
(d) The siting plan takes effect upon approval by the Solid
Waste Management Board pursuant to the rules promulgated for this
purpose. Upon approval of said the plan, the Solid Waste
Management Board shall transmit a copy thereof to the director
Secretary of the division Department of Environmental Protection and to the clerk of the county commission of the county encompassed
by said plan which county clerk shall file the plan in an
appropriate manner and shall make the plan available for inspection
by the public.
(e) Effective upon approval of the siting plan by the Solid
Waste Management Board, it is unlawful for any person to establish,
construct, install or operate a commercial solid waste facility at
a site not authorized by the siting plan: Provided, That an
existing commercial solid waste facility which, on the eighth day
of April, one thousand nine hundred eighty-nine, held a valid solid
waste permit or compliance order issued by the Division of Natural
Resources pursuant to the former provisions of article five-f,
chapter twenty of this code may continue to operate, but may not
expand the spatial land area of the said facility beyond that
authorized by said solid waste permit or compliance order and may
not increase the aggregate monthly solid waste capacity in excess
of ten thousand tons monthly unless such a facility is authorized
by the siting plan.
(f) The county or regional solid waste authority may, from
time to time, amend the siting plan in a manner consistent with the
requirements of this section for completing the initial siting plan
and the rules promulgated by the Solid Waste Management Board for
the purpose of such amendments.
(g) Notwithstanding any provision of this code to the
contrary, upon application from a person who has filed a presiting
notice pursuant to section thirteen, article fifteen, chapter
twenty-two of this code, the county or regional solid waste
authority or county commission, as appropriate, may amend the
siting plan by redesignating a zone that has been designated as an
area where a commercial solid waste facility is tentatively
prohibited to an area where one is authorized. In such case, the
person seeking the change has the burden to affirmatively and
clearly demonstrate, based on the criteria set forth in subsection
(b) of this section, that a solid waste facility could be
appropriately operated in the public interest at such location.
The Solid Waste Management Board shall provide, within available
resources, technical support to a county or regional solid waste
authority, or county commission as appropriate, when requested by
such authority or commission to assist it in reviewing an
application for any such amendment.
(h) The Solid Waste Management Board shall prepare and adopt
a siting plan for any county or regional solid waste authority
which does not complete and file with the said state authority such
a siting plan in compliance with the provisions of this section and
the rules promulgated thereunder. Any siting plan adopted by the
Solid Waste Management Board pursuant to this subsection shall comply with the provisions of this section, and the rules
promulgated thereunder, and has the same effect as a siting plan
prepared by a county or regional solid waste authority and approved
by the Solid Waste Management Board.
(i) The siting plan adopted pursuant to this section shall
incorporate the provisions of the litter and solid waste control
plan, as approved by the Solid Waste Management Board pursuant to
section eight of this article, regarding collection and disposal of
solid waste and the requirements, if any, for additional commercial
solid waste facility capacity.
(j) The Solid Waste Management Board is authorized and
directed to promulgate rules specifying the public participation
process, content, format, amendment, review and approval of siting
plans for the purposes of this section.
(k) To the extent that current solid waste plans approved by
the board are approved as provided for in this section, and in
place on the effective date of this article, provisions which limit
approval for new or expanded solid waste facilities based solely on
local solid waste disposal needs without consideration for national
waste disposal needs are disallowed as being in conflict with the
public policy of this article: Provided, That all other portions
of the solid waste management plans as established in the litter
and solid waste control plan as provided for in this section and the comprehensive recycling plan as provided for in section four,
article eleven, chapter twenty seventeen, article fifteen-a,
chapter twenty-two of the code, are continued in full force and
effect to the extent that those provisions do not conflict with the
provisions of this article.
§22C-4-25. Siting approval for solid waste facilities; effect on
facilities with prior approval.
(a) It is the intent of the Legislature that all commercial
solid waste facilities operating in this state must receive site
approval at the local level, except for recycling facilities, as
defined in section two, article fifteen, twenty-three, article
fifteen-a, chapter twenty-two of this code, that are specifically
exempted by section twelve, article eleven, chapter twenty of this
code. Notwithstanding said intent, facilities which obtained such
approval from either a county or regional solid waste authority, or
from a county commission, under any prior enactment of this code,
and facilities which were otherwise exempted from local site
approval under any prior enactment of this code, shall be deemed to
have satisfied such requirement. All other facilities, including
facilities which received such local approval but which seek to
expand spatial area or to convert from a Class B facility to a
Class A facility, shall obtain such approval only in the manner
specified in sections twenty-six, twenty-seven and twenty-eight of this article.
(b) In considering whether to issue or deny the certificate of
site approval as specified in sections twenty-six, twenty-seven and
twenty-eight of this article, the county or regional solid waste
authority shall base its determination upon the following criteria:
The efficient disposal of solid waste anticipated to be received or
processed at the facility, including solid waste generated within
the county or region, economic development, transportation
infrastructure, property values, groundwater and surface waters,
geological and hydrological conditions, aesthetic and environmental
quality, historic or cultural resources, the present or potential
land uses for residential, commercial, recreational, industrial or
environmental conservation purposes and the public health, welfare
and convenience.
(c) The county or regional solid waste authority shall
complete findings of fact and conclusions relating to the criteria
authorized in subsection (b) hereof which support its decision to
issue or deny a certificate of site approval.
(d) The siting approval requirements for composting
facilities, materials recovery facilities and mixed waste
processing facilities shall be the same as those for other solid
waste facilities.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-17a. Infrastructure revenue bonds payable from A. James
Manchin Fund.
Notwithstanding any other provision of this code to the
contrary, the Water Development Authority may issue, in accordance
with the provisions of section seventeen of this article,
infrastructure revenue bonds payable from the A. James Manchin Fund
created by section six nine, article twenty-four fifteen-a, chapter
seventeen twenty-two of this code and such other sources as may be
legally pledged for such purposes other than the West Virginia
Infrastructure Revenue Debt Service Fund created by section
seventeen of this article.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the juvenile and the alternative dispositions possible. The court,
upon its own motion, or upon request of counsel, may order a
psychological examination of the juvenile. The report of such
examination and other investigative and social reports shall not be made available to the court until after the adjudicatory hearing.
Unless waived, copies of the report shall be provided to counsel
for the petitioner and counsel for the juvenile no later than
seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the relief
sought in the petition and shall, in electing from the following
alternatives, consider the best interests of the juvenile and the
welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or custodian
to a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the juvenile is in need of
extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court of
the county where the juvenile has his or her usual place of abode
or other person while leaving the juvenile in custody of his or her
parent or custodian; and (B) prescribe a program of treatment or
therapy or limit the juvenile's activities under terms which are
reasonable and within the child's ability to perform, including
participation in the litter control program established pursuant to section twenty-five, article seven, chapter twenty three, article
fifteen-a, chapter twenty-two of this code or other appropriate
programs of community service;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the juvenile, that a juvenile is not
willing to reside in the custody of his parent or custodian or that
a parent or custodian cannot provide the necessary supervision and
care of the juvenile, the court may place the juvenile in temporary
foster care or temporarily commit the juvenile to the department or
a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
juvenile and why; and whether or not the department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. Whenever
the court transfers custody of a youth to the department, an
appropriate order of financial support by the parents or guardians
shall be entered in accordance with section five, article seven of
this chapter and guidelines promulgated by the Supreme Court of
Appeals;
(5) Upon a finding that the best interests of the juvenile or
the welfare of the public require it, and upon an adjudication of
delinquency pursuant to subdivision (1), section four, article one
of this chapter, the court may commit the juvenile to the custody of the Director of the Division of Juvenile Services for placement
in a juvenile services facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements.
Notwithstanding any provision of this code to the contrary, in the
event that the court determines that it is in the juvenile's best
interests or required by the public welfare to place the juvenile
in the custody of the Division of Juvenile Services, the court
shall provide the Division of Juvenile Services with access to all
relevant court orders and records involving the underlying offense
or offenses for which the juvenile was adjudicated delinquent,
including sentencing and presentencing reports and evaluations, and
provide the Division with access to school records, psychological
reports and evaluations, medical reports and evaluations or any
other such records as may be in the court's possession as would
enable the Division of Juvenile Services to better assess and
determine the appropriate counseling, education and placement needs
for the juvenile offender. Commitments shall not exceed the
maximum term for which an adult could have been sentenced for the
same offense and any such maximum allowable sentence to be served
in a juvenile correctional facility may take into account any time
served by the juvenile in a detention center pending adjudication,
disposition or transfer. The order shall state that continuation in the home is contrary to the best interests of the juvenile and
why; and whether or not the state department made a reasonable
effort to prevent the placement or that the emergency situation
made such efforts unreasonable or impossible; or
(6) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the juvenile to a mental health
facility in accordance with the juvenile's treatment plan; the
Director of the mental health facility may release a juvenile and
return him or her to the court for further disposition. The order
shall state that continuation in the home is contrary to the best
interests of the juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible.
(c) The disposition of the juvenile shall not be affected by
the fact that the juvenile demanded a trial by jury or made a plea
of denial. Any dispositional order is subject to appeal to the
Supreme Court of Appeals.
(d) Following disposition, the court shall inquire whether the
juvenile wishes to appeal and the response shall be transcribed; a
negative response shall not be construed as a waiver. The evidence
shall be transcribed as soon as practicable and made available to the juvenile or his or her counsel, if the same is requested for
purposes of further proceedings. A judge may grant a stay of
execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a juvenile charged with delinquency under this chapter
is transferred to adult jurisdiction and there tried and convicted,
the court may make its disposition in accordance with this section
in lieu of sentencing such person as an adult.
§49-5-13b. Authority of the courts to order fines; revocation of
vehicle privileges and restitution.
(a) In addition to the methods of disposition provided in
section thirteen of this article, the court may enter an order
imposing one or more of the following penalties, conditions and
limitations:
(1) Impose a fine not to exceed one hundred dollars upon such
child;
(2) Require the child to make restitution or reparation to the
aggrieved party or parties for actual damages or loss caused by the
offense for which the child was found to be delinquent, or if the
child does not make full restitution, require the custodial parent
or parents, as defined in section two, article seven-a, chapter
fifty-five, of the child to make partial or full restitution to the
victim to the extent the child fails to make full restitution;
(3) Require the child to participate in a public service
project under such conditions as the court prescribes, including
participation in the litter control program established pursuant to
the authority of section twenty-five, article seven, chapter twenty
three, article fifteen-a, chapter twenty-two of this code;
(4) When the child is fifteen years of age or younger and has
been adjudged delinquent, the court may order that the child is not
eligible to be issued a junior probationary operator's license or
when the child is between the ages of sixteen and eighteen years
and has been adjudged delinquent, the court may order that the
child is not eligible to operate a motor vehicle in this state, and
any junior or probationary operator's license shall be surrendered
to the court. Such child's driving privileges shall be suspended
for a period not to exceed two years, and the clerk of the court
shall notify the Commissioner of the department Division of Motor
Vehicles of such order.
(b) Nothing herein stated shall limit the discretion of the
court in disposing of a juvenile case: Provided, That the juvenile
shall not be denied probation or any other disposition pursuant to
this article because the juvenile is financially unable to pay a
fine or make restitution or reparation: Provided, however, That
all penalties, conditions and limitations imposed under this
section shall be based upon a consideration by the court of the seriousness of the offense, the child's ability to pay, and a
program of rehabilitation consistent with the best interests of the
child.
(c) Notwithstanding any other provisions of this code to the
contrary, in the event a child charged with delinquency under this
chapter is transferred to adult jurisdiction and there convicted,
the court may nevertheless, in lieu of sentencing such person as an
adult, make its disposition in accordance with this section.;
And,
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 428--A Bill
to repeal §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5, §17-24-
6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the Code of West
Virginia, 1931, as amended; to repeal §20-7-24, §20-7-25, §20-7-26,
§20-7-27 and §20-7-29 of said code; to repeal §20-11-1, §20-11-2,
§20-11-3, §20-11-4, §20-11-5, §20-11-6, §20-11-7, §20-11-8, §20-11-
9, §20-11-10, §20-11-11 and §20-11-12 of said code; to amend and
reenact §7-1-3ff of said code; to amend and reenact §17-2A-21 of
said code; to amend and reenact §17-23-2 of said code; to amend and
reenact §17A-10-16 of said code; to amend and reenact §17C-14-14 of
said code; to amend and reenact §22-15-2 and §22-15-21 of said
code; to amend said code by adding thereto a new article, designated §22-15A-1, §22-15A-2, §22-15A-3, §22-15A-4, §22-15A-5,
§22-15A-6, §22-15A-7, §22-15A-8, §22-15A-9, §22-15A-10, §22-15A-11,
§22-15A-12, §22-15A-13, §22-15A-14, §22-15A-15, §22-15A-16, §22-
15A-17, §22-15A-18, §22-15A-19, §22-15A-20, §22-15A-21, §22-15A-22
and §22-15A-23; to amend and reenact §22C-3-7 and §22C-3-24 of said
code; to amend and reenact §22C-4-24 and §22C-4-25 of said code; to
amend and reenact §31-15A-17a of said code; and to amend and
reenact §49-5-13 and §49-5-13b of said code, all relating to the
Rehabilitation Environmental Action Plan; consolidating litter
control, open dump elimination and reclamation, waste tire cleanup
and recycling programs; defining certain terms; providing for
litter control and recycling programs; providing additional duties
of Secretary of the Department of Environmental Protection;
transferring assets, contracts and personnel of the Litter Control
Program; providing penalties for the unlawful disposal of litter;
providing for litter control education; creating the Pollution
Prevention and Open Dump Program; providing for assistance to solid
waste authorities for litter and solid waste plans; prohibiting
waste tires in certain places; providing for penalty for violations
thereof; providing that the Department of Environmental Protection
is to administer funds for waste tire remediation; authorizing the
Secretary of the Department of Environmental Protection to
promulgate rules; providing for the disposal of waste tires; providing for the continuation of the A. James Manchin Fund;
establishing purposes for expenditure from the A. James Manchin
Fund; providing that the Commissioner of the Division of Highways
work with the Secretary of the Department of Environmental
Protection in certain circumstances; establishing remediation and
liability for remediation; clarifying that Commissioner of Bureau
for Public Health has the authority to regulate public health
matters; establishing recycling goals and plans; establishing
county recycling programs for solid waste; providing for a
recycling assessment fee; providing for criminal penalties;
establishing state recycling program for solid waste; providing for
the procurement of recycled products; prohibiting the disposal of
certain items; and exempting certain recycling facilities from
regulation.
On motion of Senator Kessler, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk and adopted:
On page thirty-two, section three, subsection (c), by striking
out all of subdivision (4);
And renumbering the remaining subdivisions;
And,
On page fifty-two, section twelve, subsection (a),
subdivision (1), by striking out the word "Division" and inserting in lieu thereof the word "Department".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 428, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 428) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 513, Relating to tax credits for
qualified centers for economic development and technology
advancement.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. WEST VIRGINIA CAPITAL COMPANY ACT.
§5E-1-8. Tax credits.
(a) The total amount of tax credits authorized for a single
qualified company may not exceed two million dollars. The total
amount of tax credits authorized for a single economic development
and technology advancement center may not exceed one million
dollars. Capitalization of the company or center may be increased
pursuant to rule of the Authority.
(b) (1) The total credits authorized by the Authority for all
companies and centers may not exceed a total of ten million dollars
each fiscal year: Provided, That for the fiscal year beginning on
the first day of July, one thousand nine hundred ninety-nine, the
total credits authorized for all companies may not exceed a total
of six million dollars: Provided, however, That for the fiscal year beginning on the first day of July, two thousand, the total
credits authorized for all companies may not exceed a total of four
million dollars: Provided further, That for the fiscal year
beginning on the first day of July, two thousand one, the total
credits authorized for all companies may not exceed a total of four
million dollars: And provided further, That for the fiscal year
beginning on the first day of July, two thousand two, the total
credits authorized for all companies may not exceed a total of
three million dollars: And provided further, That for the fiscal
year beginning on the first day of July, two thousand three, the
total credits authorized for all companies may not exceed a total
of three million dollars: And provided further, That for the
fiscal year beginning on the first day of July, two thousand four,
the total credits authorized for all companies may not exceed a
total of one million dollars: And provided further, That for the
fiscal year beginning on the first day of July, two thousand five,
there shall be no credits authorized: And provided further, That
the capital base of any qualified company other than an economic
development and technology advancement center qualified under the
provisions of article twelve-a, chapter eighteen-b of this code
shall be invested in accordance with the provisions of this
article. The Authority shall allocate these credits to qualified
companies and centers in the order that the companies are qualified.
(2) Not more than two million dollars of the credits allowed
under subdivision (1) of this subsection may be allocated by the
Authority during each fiscal year to one or more small business
investment companies described in this subdivision: Provided, That
for the fiscal year beginning on the first day of July, two
thousand four, and for the fiscal year beginning on the first day
of July, two thousand five, no credits authorized by this section
may be allocated by the Authority to one or more small business
investment companies. After a portion of the credits are allocated
to small business investment companies as provided in this section,
not more than one million dollars of the credits allowed under
subdivision (1) of this subsection may be allocated by the
Authority during each fiscal year to one or more economic
development and technology advancement centers qualified by the
Authority under article twelve-a, chapter eighteen-b of this code:
Provided, however, That for the fiscal year beginning on the first
day of July, two thousand four, all of the credits allowed under
subdivision (1) of this subsection shall be allocated only to one
or more qualified economic development and technology advancement
centers: Provided further, That for the fiscal year beginning on
the first day of July, two thousand five, no credits allowed under
subdivision (1) of this subsection shall be allocated to any qualified economic development and technology advancement center.
The remainder of the tax credits allowed during the fiscal year
shall be allocated by the Authority under the provisions of section
four, article two of this chapter: Provided And provided further,
That for the fiscal year beginning on the first day of July, two
thousand four, and for the fiscal year beginning on the first day
of July, two thousand five, no credits authorized by this section
may be allocated by the Authority to a taxpayer pursuant to the
provisions of section four, article two of this chapter. The
portion of the tax credits allowed for small business investment
companies described in this subdivision shall be allowed only if
allocated by the Authority during the first ninety days of the
fiscal year and may only be allocated to companies that: (A) Were
organized on or after the first day of January, one thousand nine
hundred ninety-nine; (B) are licensed by the Small Business
Administration as a small business investment company under the
Small Business Investment Act; and (C) have certified in writing to
the Authority on the application for credits under this act that
the company will diligently seek to obtain and thereafter
diligently seek to invest leverage available to the small business
investment companies under the Small Business Investment Act.
These credits shall be allocated by the Authority in the order that
the companies are qualified. The portion of the tax credits allowed for economic development and technology advancement centers
described in article twelve-a, chapter eighteen-b of this code
shall be similarly allowed only if allocated by the Authority
during the first ninety days of the fiscal year. Any credits which
have not been allocated to qualified companies meeting the
requirements of this subdivision relating to small business
investment companies or to qualified economic development and
technology advancement centers during the first ninety days of the
fiscal year shall be made available and allocated by the Authority
under the provisions of section four, article two of this chapter:
And provided further, That for the fiscal year beginning on the
first day of July, two thousand four, and for the fiscal year
beginning on the first day of July, two thousand five, no credits
authorized by this section may be allocated by the Authority to a
taxpayer pursuant to the provisions of section four, article two of
this chapter.
(3) Notwithstanding any provision of this code or legislative
rule promulgated thereunder to the contrary, for the fiscal year
beginning on the first day of July, two thousand four, and for the
fiscal year beginning on the first day of July, two thousand five,
the Authority has the sole discretion to allocate or refuse to
allocate tax credits authorized under this section to any qualified
economic development and technology advancement center upon its determination of the extent to which the center will fulfill the
purposes of this article. The determination shall be based upon
the application of the center, the extent to which the company or
center fulfilled those purposes in prior years after receiving tax
credits authorized under this section, the extent to which the
center is expected to stimulate economic development and high
technology research in the chemical industry and such other
similarly related criteria as the Authority may establish by vote
of the majority of Authority.
(c) Any investor, including an individual, partnership,
limited liability company, corporation or other entity who makes a
capital investment in a qualified West Virginia capital company, is
entitled to a tax credit equal to fifty percent of the investment,
except as otherwise provided in this section or in this article:
Provided, That the tax credit available to investors who make a
capital investment in an economic development and technology
advancement center shall be one hundred percent of the investment.
The credit allowed by this article shall be taken after all other
credits allowed by chapter eleven of this code. It shall be taken
against the same taxes and in the same order as set forth in
subsections (c) through (i), inclusive, section five, article
thirteen-c, chapter eleven of this code. The credit for
investments by a partnership, limited liability company, a corporation electing to be treated as a subchapter S corporation or
any other entity which is treated as a pass through entity under
federal and state income tax laws may be divided pursuant to
election of the entity's partners, members, shareholders or owners.
(d) The tax credit allowed under this section is to be
credited against the taxpayer's tax liability for the taxable year
in which the investment in a qualified West Virginia capital
company or economic development and technology advancement center
is made. If the amount of the tax credit exceeds the taxpayer's
tax liability for the taxable year, the amount of the credit which
exceeds the tax liability for the taxable year may be carried to
succeeding taxable years until used in full or until forfeited:
Provided, That: (i) Tax credits may not be carried forward beyond
fifteen years; and (ii) tax credits may not be carried back to
prior taxable years. Any tax credit remaining after the fifteenth
taxable year is forfeited.
(e) The tax credit provided for in this section is available
only to those taxpayers whose investment in a qualified West
Virginia capital company or economic development and technology
advancement center occurs after the first day of July, one thousand
nine hundred eighty-six.
(f) The tax credit allowed under this section may not be used
against any liability the taxpayer may have for interest, penalties or additions to tax.
(g) Notwithstanding any provision in this code to the
contrary, the tax commissioner shall publish in the state register
the name and address of every taxpayer and the amount, by category,
of any credit asserted under this article. The categories by
dollar amount of credit received are as follows:
(1) More than $1.00, but not more than $50,000;
(2) More than $50,000, but not more than $100,000;
(3) More than $100,000, but not more than $250,000;
(4) More than $250,000, but not more than $500,000;
(5) More than $500,000, but not more than $1,000,000; and
(6) More than $1,000,000.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 513--A Bill to amend and reenact §5E-1-8
of the Code of West Virginia, 1931, as amended, relating to
eliminating the total tax credits available under the Capital
Company Act during the fiscal year beginning on the first day of
July, two thousand five.
On motion of Senator McCabe, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the provisions of Engrossed
Senate Bill No. 162;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 513--A Bill to amend and reenact §5E-1-8
of the Code of West Virginia, 1931, as amended, relating to the
Capital Company Act; eliminating the total tax credits available
under the Capital Company Act during the fiscal year beginning on
the first day of July, two thousand five; and modifying the time
period in which the Authority may allocate tax credits available
under the Capital Company Act during the fiscal year beginning on
the first day of July, two thousand four.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 513, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 513) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 513) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Senator Plymale, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Senate Bill No. 604, Establishing method for projecting
increase in net enrollment for each school district.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to the House of
Delegates amendments to Engrossed Senate Bill No. 604 having met,
after full and free conference, have agreed to recommend and do
recommend to their respective houses, as follows:
That the House of Delegates agree to the amendments of the
Senate to the House of Delegates amendments to the bill.
Respectfully submitted,
Robert H. Plymale, Chair, John R. Unger II, Karen L. Facemyer,
Conferees on the part of the Senate.
Thomas W. Campbell, Chair, Larry A. Williams, Walter E. Duke,
Conferees on the part of the House of Delegates.
Senator Plymale, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Plymale, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 604, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--33.
The nays were: Harrison--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 604) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--33.
The nays were: Harrison--1.
Absent: None.
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. 604) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate 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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 575, Authorizing crossbow
hunting for disabled persons.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §20-2-5g and
§20-2-42, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-5g. Use of a crossbow by certain physically disabled
persons.
(a) Notwithstanding any other provision of this code to the
contrary, a person who possesses a valid Class Y permit in
accordance with section forty-two of this article may, during the designated archery hunting season, hunt with a crossbow.
(b) Only crossbows meeting all of the following specifications
may be used for hunting in West Virginia:
(1) The crossbow has a minimum draw weight of one hundred
twenty-five pounds;
(2) The crossbow has a working safety; and
(3) The crossbow is used with bolts and arrows not less than
eighteen inches in length with a broad head having at least two
sharp cutting edges, measuring at least three fourths of an inch in
width.
§20-2-42. Class Y special crossbow hunting permit for certain
disable persons.
(a) On or after the first day of January, two thousand six, a
Class Y permit shall be a special statewide hunting permit and
shall entitle the permittee to hunt all wildlife during established
archery seasons. An application shall be furnished by the Director
and a Class Y permit allowing the holder to use a crossbow, during
the archery hunting seasons, to applicants who meet the following
requirements:
(1) He or she holds a Class Q permit;
(2) He or she has a permanent and substantial loss of function
in one or both hands while failing to meet the minimum standards of
the upper extremity pinch, grip and nine-hole peg tests administered under the direction of a licensed physician; or
(3) A permanent and substantial loss of function in one or
both shoulders while failing to meet the standards of the standard
shoulder strength test, administered under the direction of a
licensed physician.
(b) The application form shall include a written statement or
report prepared by a physician, prepared no more than six months
preceding the application and verifying that the applicant is
physically disabled as described in this section. As part of the
application, the applicant shall authorize, by written release, an
examination of all medical records regarding his or her qualifying
disability. When completed, the permit form constitutes a Class Y
permit. The Class Y permit and a completed license application
shall be submitted to the Division, which will issue a wallet-sized
card to the permittee. The card and all other documents and
identification required to be carried by this article shall be in
the permittee's possession when hunting.
(c) A Class Y permit must be accompanied by a valid statewide
hunting license or the applicant must be exempt from hunting
licenses as provided in this chapter.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 575--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §20-2-5g and §20-2-42, all relating to
authorizing crossbow hunting for certain disabled persons;
providing crossbow specifications; and establishing permit
requirements.
On motion of Senator Fanning, the following amendment to the
House of Delegates amendments to the bill was reported by the
Clerk:
On page one, section five-g, after subsection (b), by
inserting a new subsection, designated subsection (c), to read as
follows:
(c) The authority granted under this section shall expire on
the thirty-first day of December, two thousand seven.
Following discussion,
The question being on the adoption of Senator Fanning's
amendment to the House of Delegates amendments to the bill (Eng.
Com. Sub. for S. B. No. 575), the same was put.
The result of the voice vote being inconclusive, Senator
Fanning demanded a division of the vote.
A standing vote being taken, there were eleven "yeas" and
sixteen "nays".
Whereupon, the President declared Senator Fanning's amendment to the House of Delegates amendments to the bill rejected.
Following a point of inquiry to the President, with resultant
response thereto,
On motion of Senator Facemyer, the Senate concurred in the
House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 575, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 575) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Boley, unanimous consent being
granted, the Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 93--Providing for the issuance
of not to exceed three hundred seventy-five million dollars of
refunding bonds pursuant to the "Safe Roads Amendment of 1996",
article two-g, chapter thirteen, and article twenty-six, chapter
seventeen of the code of West Virginia.
Resolved by the Legislature of West Virginia:
That safe road refunding bonds in the principal amount not to
exceed three hundred seventy-five million dollars are authorized to
be issued by the State of West Virginia and sold by the Governor
during the fiscal year ending the thirtieth day of June, two
thousand five; and, be it
Further Resolved, That the bonds shall be issued in registered
form, in such denominations, maturing at such times and bearing
such date or dates as the Governor may determine: Provided, That
the average maturity of the bonds to be issued shall not exceed the
average maturity of the refunded bonds: Provided, however, That
the refunding issue be structured to provide for approximately
level annual debt service savings each fiscal year through the final maturity or that the refunding issue be structured to
approximate the level of debt service that would have been paid
prior to the refunding, with a preponderance of the savings being
deferred toward eliminating or reducing the most distant
maturities; and, be it
Further Resolved, That all such bonds shall be payable at the
Office of the Treasurer of the State of West Virginia, or at some
bank in the city of Charleston to be designated by the Governor;
and, be it
Further Resolved, That the bonds shall bear interest at rates
and be payable in amounts as determined by the Governor; and, be it
Further Resolved, That the State Treasurer shall pay the
principal and/or interest then due on the bonds to the registered
owners thereon at the addresses shown by the record of
registration; and, be it
Further Resolved, That the bonds shall be signed as provided
in section two, article twenty-six, chapter seventeen of the code
of West Virginia; and, be it
Further Resolved, That the bonds may be redeemable on such
date or dates prior to maturity as determined by the Governor; and,
be it
Further Resolved, That the Governor shall sell the bonds
herein mentioned at such time or times in such amounts, not exceeding the aggregate principal amount described above, at such
prices during the fiscal year as he may determine necessary to
provide funds for the purposes provided below; and, be it
Further Resolved, That the net proceeds of sales of all bonds
herein authorized shall be paid into a special and irrevocable
trust fund, separate and apart from other funds of the State of
West Virginia, to be held in the custody of an escrow trustee to be
designated by the Governor; and, be it
Further Resolved, That an irrevocable deposit of said moneys
in trust for, and such moneys and the investments thereof, together
with any income or interest earned thereon, shall be applied to the
payment of the principal of and interest on certain issued and
outstanding safe road bonds, to be selected by the Governor, as the
same become due and payable.
At the request of Senator Chafin, and by unanimous consent,
the message was taken up for immediate consideration and reference
of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended with its Senate
amended title, to take effect from passage, and requested the
concurrence of the Senate in the House of Delegates amendments to
the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2852, Implementing the
recommendations of the West Virginia Pharmaceutical Cost Council.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page two, section two, subsection (c), by striking out the
words "a benchmark" and inserting in lieu thereof the words "a
pricing schedule";
On page three, section two, after subsection (e), by inserting
a new subsection, designated subsection (f), to read as follows:
(f) The Legislature, while making no attempt to prevent the
public from receiving information important to the appropriate
utilization of medicines, is attempting to protect the financial
solvency of the state from drug pricing increases caused by
advertising directed to the consumer so as to sustain the
unjustified utilization of new, often unproven, and expensive
drugs. The specific state financial interest in reducing the price
of prescription drugs, in addition to the general state interest of its financial solvency, includes the significantly increased
Medicaid budget of the state caused by increasing numbers of West
Virginia citizens in the program and also by significantly
increasing costs of prescription drugs in the Medicaid budget. The
specific state interest also includes the significantly increasing
costs of prescription drugs in the budget of the state Public
Employees Insurance Agency, the health insurance program for all of
the state employees and participating political units of local
government. The specific state interest also includes the
significantly increasing costs of prescription drugs in the budgets
of each state agency set out in section four of this article.;
On page thirteen, section six, subsection (b), subdivision
(13), paragraph (A), by striking out the words "involving the
Public Employees Insurance Agency" and inserting in lieu thereof
the words "for program participants";
On page thirteen, section six, subsection (b), subdivision
(13), paragraph (A), by striking out the words "members of the
Public Employees Insurance Agency" and inserting in lieu thereof
the words "participants in the pharmaceutical program";
On page fourteen, section six, subsection (b), after
subdivision (14), by inserting a new subdivision, designated
subdivision (15), to read as follows:
(15) If the Pharmaceutical Advocate, with the advice of the Council, determines that a pharmaceutical manufacturer is
negotiating pharmaceutical prices so that the savings to the state
are substantial, reasonable and reflective of a genuine effort to
reach agreement, the Pharmaceutical Advocate shall continue to
participate in the negotiations with the specific goal of reducing
the cost of pharmaceuticals for the citizens of the state. If the
Pharmaceutical Advocate, with advise of the Council, determines
that any pharmaceutical manufacturer does not negotiate so that the
savings to the state are substantial, reasonable and reflective of
a genuine effort to reach agreement, the Pharmaceutical Advocate
may develop and implement the FSS pricing benchmark with a
procedure for pharmaceutical manufacturers to apply for a waiver
from the FSS pricing benchmark for brand name drugs, which waiver
may be granted by the Pharmaceutical Advocate with input from the
Council. The waiver may be granted to a pharmaceutical
manufacturer for a particular brand name drug after the
Pharmaceutical Advocate determines that the development,
production, distribution costs, other reasonable costs and
reasonable profits, excluding all marketing and advertising costs,
is more than the FSS benchmark price of the pharmaceutical or in
those cases in which the pharmaceutical in question has a sole
source. Advertising and marketing costs may be considered in those
cases in which the manufacturer has established that the drug is the only currently FDA-approved treatment for a recognized non-
cosmetic medical condition or that it has proven to the FDA's
satisfaction that it confers a significant benefit over existing
treatments for the same condition, as evidenced by the agency's
approval of such a claim in the drug's package insert. The
determination of reasonable costs and reasonable profits may
fluctuate between different pharmaceuticals under consideration.
The Advocate shall determine, by legislative rule, fees to be paid
by the applicant at the time of the waiver application and proof
required to be submitted at the time of the waiver request.;
And,
On page twenty-three, section twenty, subsection (a),
subdivision (2), after the word "prices" by changing the period to
a semicolon and inserting the following: or
(3) Fixing, controlling, maintaining, limiting or
discontinuing the production, manufacture, sale or supply of any
pharmaceuticals for the purpose or with the effect of fixing,
controlling or maintaining the market price of the pharmaceutical.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the Senate amendments to the bill
(Eng. Com. Sub. for H. B. No. 2852) and requested the House of
Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for Senate Bill No. 418, Providing insurance
reform by expanding and providing funding and expanded powers for
Office of Consumer Advocacy.
Passed by the Senate in earlier proceedings tonight,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
as to the passage of the bill.
The vote thereon having been reconsidered,
On motion of Senator Chafin, the Senate reconsidered its
action by which in earlier proceedings tonight it concurred in the
House of Delegates amendments, as amended (shown in the Senate
Journal of today, pages 704 through 747, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the Senate concur in the House of Delegates amendments,
as amended.
At the request of Senator Chafin, and by unanimous consent,
his foregoing motion was withdrawn.
On motion of Senator Chafin, the Senate reconsidered its
action by which in earlier proceedings tonight it adopted Senator
Minard's amendment to the House of Delegates amendments to the bill
on pages twenty-four through twenty-eight (shown in the Senate
Journal of today, pages 741 through 745, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Minard's
amendment to the House of Delegates amendments to the bill (Eng.
Com. Sub. for S. B. No. 418).
Thereafter, at the request of Senator Minard, and by unanimous
consent, Senator Minard's amendment to the House of Delegates
amendments to the bill was withdrawn.
On motion of Senator Minard, the following substitute
amendment to the House of Delegates amendments to the bill was
reported by the Clerk and adopted:
On pages twenty-four through twenty-eight, by striking out all
of section thirty-three and inserting in lieu thereof a new section
thirty-three, to read as follows:
§33-3-33. Surcharge on fire and casualty insurance policies to
benefit volunteer and part-volunteer fire departments; Public
Employees Insurance Agency and municipal pension plans;
special fund created; allocation of proceeds; effective date.
(a) (1) For the purpose of providing additional revenue for volunteer fire departments, part-volunteer fire departments and
certain retired teachers and the Teachers Retirement Reserve Fund,
there is hereby authorized and imposed on and after the first day
of July, one thousand nine hundred ninety-two, on the policyholder
of any fire insurance policy or casualty insurance policy issued by
any insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to one percent of the taxable
premium for each such policy. After the thirtieth day of June, two
thousand five, the surcharge shall be imposed as specified in
subdivisions (2) and (3) of this subsection.
(2) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, for
the purpose of providing additional revenue for volunteer fire
departments, part-volunteer fire departments and to provide
additional revenue to the Public Employees Insurance Agency and
municipal pension plans, there is hereby authorized and imposed on
and after the first day of July, two thousand five, on the
policyholder of any fire insurance policy or casualty insurance
policy issued by any insurer, authorized or unauthorized, or by any
risk retention group, a policy surcharge equal to one percent of
the taxable premium for each such policy.
(3) After the thirty-first day of December, two thousand five,
for the purpose of providing additional revenue for volunteer fire departments and part-volunteer fire departments, there is hereby
authorized and imposed on the policyholder of any fire insurance
policy or casualty insurance policy issued by any insurer,
authorized or unauthorized, or by any risk retention group, a
policy surcharge equal to fifty-five one hundredths of one percent
of the taxable premium for each such policy.
(4) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the debtor
is disabled as defined in the policy. The policy surcharge may not
be subject to premium taxes, agent commissions or any other
assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the Commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is issued
by a risk retention group, by the risk retention group. The amount
required to be collected under this section shall be remitted to
the Commissioner on a quarterly basis on or before the twenty-fifth
day of the month succeeding the end of the quarter in which they
are collected, except for the fourth quarter for which the
surcharge shall be remitted on or before the first day of March of the succeeding year.
(c) Any person failing or refusing to collect and remit to the
Commissioner any policy surcharge and whose surcharge payments are
not postmarked by the due dates for quarterly filing is liable for
a civil penalty of up to one hundred dollars for each day of
delinquency, to be assessed by the Commissioner. The Commissioner
may suspend the insurer, broker or risk retention group until all
surcharge payments and penalties are remitted in full to the
Commissioner.
(d) (1) All money from the policy surcharge shall be collected
by the Commissioner who shall disburse the money received from the
surcharge into a special account in the State Treasury, designated
the "Fire Protection Fund". The net proceeds of this portion of
the tax and the interest thereon, after appropriation by the
Legislature, shall be distributed quarterly on the first day of the
months of January, April, July and October to each volunteer fire
company or department on an equal share basis by the State
Treasurer. After the thirtieth day of June, two thousand five, the
money received from the surcharge shall be distributed as specified
in subdivisions (2) and (3) of this subsection.
(2) (A) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, all
money from the policy surcharge shall be collected by the Commissioner who shall disburse one half of the money received from
the surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection.
(B) The remaining portion of moneys collected shall be
transferred into the fund in the State Treasury of the Public
Employees Insurance Agency into which are deposited the
proportionate shares made by agencies of this state of the Public
Employees Insurance Agency costs of those agencies, until the first
day of November, two thousand five. After the thirty-first day of
October, two thousand five, through the thirty-first day of
December, two thousand five, the remaining portion shall be
transferred to the special account in the State Treasury, known as
the Municipal Pensions and Protection Fund.
(3) After the thirty-first day of December, two thousand five,
all money from the policy surcharge shall be collected by the
Commissioner who shall disburse all of the money received from the
surcharge into the "Fire Protection Fund" for distribution as
provided in subdivision (1) of this subsection.
(1) (4) Before each distribution date to volunteer fire
companies or departments, the State Fire Marshal shall report to
the State Treasurer the names and addresses of all volunteer and
part-volunteer fire companies and departments within the state
which meet the eligibility requirements established in section eight-a, article fifteen, chapter eight of this code.
(2) The remaining fifty percent of the moneys collected shall
be transferred to the teachers retirement system to be disbursed
according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code.
Any balance remaining after the disbursements authorized by this
subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund.
(e) The allocation, distribution and use of revenues provided
in the Fire Protection Fund are subject to the provisions of
sections eight-a and eight-b, article fifteen, chapter eight of
this code.
On motion of Senator Chafin, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and
resumed consideration of Engrossed Committee Substitute for Senate
Bill No. 418.
On motion of Senator Chafin, the Senate reconsidered its
action by which in earlier proceedings tonight it adopted Senator
Minard's amendment to the House of Delegates amendments to the bill
on page twenty-seven (shown in the Senate Journal of today, pages
745 and 746).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Minard's
amendment to the House of Delegates amendments to the bill (Eng.
Com. Sub. for S. B. No. 418).
Thereafter, at the request of Senator Minard, and by unanimous
consent, Senator Minard's amendment to the House of Delegates
amendments to the bill was withdrawn.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as just amended.
Engrossed Committee Substitute for Senate Bill No. 418, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Deem, Edgell, Facemyer, Fanning, Foster, Guills,
Harrison, Helmick, Jenkins, Lanham, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks,
Yoder and Tomblin (Mr. President)--28.
The nays were: Bowman, Chafin, Dempsey, Hunter and
Kessler--5.
Absent: White--1.
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. 418) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments to the Senate
amendments, as to
Eng. Com. Sub. for House Bill No. 2444, Mandatory
participation in the motor vehicle alcohol test and lock program
for repeat offenders.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page ten, section two, subsection (p), after the words
"subsequent offense:" by striking out the remainder of the section
and inserting in lieu thereof the following: Provided, however,
That for any period of home incarceration ordered for a person
convicted of second offense under this section, electronic
monitoring shall be required for no fewer than five days of the
total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of
section five, article eleven-b, chapter sixty-two of this code:
Provided further, That for any period of home incarceration ordered
for a person convicted of a third or subsequent violation of this
section, electronic monitoring shall be included for no fewer than
ten days of the total period of home confinement ordered and the
offender may not leave home for those ten days notwithstanding
section five, article eleven-b, chapter sixty-two of this code.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2444--A Bill to amend and
reenact §17C-5-2 of the Code of West Virginia, 1931, as amended;
and to amend reenact §17C-5A-3a, all relating to compliance with
federal funding requirements regarding driving under the influence
offenders; limiting work release to convictions for a first
offense; and the creation of mandatory periods of electronically
monitored home confinement.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2444, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 H. B. No. 2444) passed with its House of Delegates
amended title.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, 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
to the Senate amendments, as to
Eng. House Bill No. 2891, Relating to the reorganization of
the 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 Senate
amendments to the bill were reported by the Clerk:
On pages twenty-four and twenty-five, section one, by striking
out all of subsection (f) and inserting in lieu thereof a new
subsection (f), to read as follows:
"(g) (f) Bureau of environment is abolished and the The
following agencies and boards, including all of the 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 in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in
article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.;
On pages thirty-eight and thirty-nine, section two, subsection
(b), by striking out the words "The Governor or designee serves as
chair." and inserting in lieu thereof the following: As of the
effective date of the reenactment of this section during the
regular session of two thousand five, the Governor or designee
serves as chair for a term not to exceed four years unless extended
by act of the Legislature. Thereafter the Authority shall select
the chair.;
On page thirty-eight, section two, by striking out all of
subsection (c) and inserting in lieu thereof a new subsection (c),
to read as follows:
(c) As of the effective date of the reenactment of this
section during the regular session of two thousand five, the
Governor shall appoint an Executive Director, at a salary fixed by
the Governor, to serve for a term not to exceed four years unless
extended by act of the Legislature. Thereafter, the Authority
shall appoint the Executive Director and fix his or her salary.
The Executive 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. The Authority is authorized to establish such office or offices as may be necessary for the proper performance of
its duties.;
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-
1B-7 and §5-1B-8 of the Code of West Virginia, 1931, as amended, be
repealed; that said code be amended by adding thereto a new
article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5,
§5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended
and reenacted; that §5A-8-15 of said code be amended and reenacted;
that §5B-1-2 of said code be amended and reenacted; that §5B-3-4
and §5B-3-5 of said code be amended and reenacted; that §5F-2-1 and
§5F-2-2 of said code be amended and reenacted; that §10-5-2 of said
code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §10-5-5a; that §11-10A-6 and §11-
10A-7 of said code be amended and reenacted; that §17-16A-3 and
§17-16A-10 of said code be amended and reenacted; and that §49-9-15
of said code be amended and reenacted, all to read as follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2891--A Bill to repeal §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the Code
of West Virginia, 1931, as amended; to amend said code by adding
thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-
4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; to amend and reenact §5A-
7-4 of said code; to amend and reenact §5A-8-15 of said code; to
amend and reenact §5B-1-2 of said code; to amend and reenact §5B-3-
4 and §5B-3-5 of said code; to amend and reenact §5F-2-1 and §5F-2-
2 of said code; to amend and reenact §10-5-2; to amend said code by
adding thereto a new section, designated §10-5-5a; to amend and
reenact §11-10A-6 and §11-10A-7 of said code; to amend and reenact
§17-16A-3 and §17-16A-10 of said code; and to amend and reenact
§49-9-15 of said code, all relating to the reorganization of the
executive branch of state government; transferring the Office of
Technology from the Office of the Governor to the Department of
Administration; providing that the Director of Information Services
and Communications Division shall report to the Chief Technology
Officer; providing that the Director of Information Services and
Communications Division shall develop and maintain an information
systems disaster recovery system; modifying membership of the
Records Management and Preservation Board to include a county
sheriff and a county assessor; limiting the time period for
department secretaries to transfer funds within their respective
departments; requiring secretaries of departments to cooperate with the Office of the Pharmaceutical Advocate in purchasing
prescription drugs; transferring the Bureau of Employment Programs
to the Department of Commerce; providing that the Governor will
chair the Educational Broadcasting Authority for a limited term;
providing that the Governor will appoint an Executive Director of
the Educational Broadcasting Authority to serve for a limited term;
modifying the term of the chief administrative law judge of the
Office of Tax Appeals; providing that the Governor has the
authority to appoint two administrative law judges to the Office of
Tax Appeals; providing for Governor to chair the West Virginia
Parkways, Economic Development and Tourism Authority; authorizing
the Governor to appoint an Executive Director of the Virginia
Parkways, Economic Development and Tourism Authority and set salary
annually; modifying membership of the Missing Children Information
Clearinghouse; and making technical corrections.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed House Bill No. 2891, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--33.
The nays were: Sprouse--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2891) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--33.
The nays were: Sprouse--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2891) takes effect from passage.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, to take effect from passage, and requested the
concurrence of the Senate in the House of Delegates amendments to
the Senate amendments, as to
Eng. House Bill No. 2984, Discontinuing the loan program
participation of teachers and nonteachers who become members of the
Teachers Retirement System on or after July 1, 2005.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page thirty-two, section twenty-two-h, subsection (b), by
striking out the word "five" and inserting in lieu thereof the word
"six";
On page thirty-three, section twenty-two-h, subsection (b), by
striking out the word "five-year" and inserting in lieu thereof the
word "six-year";
On page seventy, section five, after subsection (c), by
inserting a new subsection, designated subsection (d), to read as
follows:
(d) Bonds may be issued by the Governor upon resolution
adopted by the Legislature authorizing the same.;
And by relettering the remaining subsections;
On page seventy-three, section seven, subsection (b), after
the words "pursuant to this article" by striking out the word "and"
and inserting in lieu thereof a comma and the words "which bond
proceeds shall be invested pursuant to";
On page seventy-three, section seven, subsection (b), after
the word "Virginia" by inserting the words "and otherwise as
provided by law";
On page eighty, section ten, subsection (e), by striking out
the word "five" and inserting in lieu thereof the word "six";
On page eighty-one, section ten, subsection (e), by striking
out the word "five-year" and inserting in lieu thereof the word
"six-year";
On page one hundred ten, section thirty-nine-a, subsection
(b), by striking out the word "five" and inserting in lieu thereof
the word "six";
On page one hundred thirty-eight, section twenty-two,
subsection (b), by striking out the word "five" and inserting in
lieu thereof the word "six";
On page one hundred thirty-eight, section twenty-two,
subsection (b), by striking out the word "five-year" and inserting
in lieu thereof the word "six-year";
On page one hundred seventy-three, section twenty-eight-e, subsection (b), by striking out the word "five" and inserting in
lieu thereof the word "six";
On page one hundred seventy-nine, section thirty-nine,
subsection (c), after the word "code" by inserting the words "as
appropriated by the Legislature";
And,
On page two hundred twelve, section six-c, subsection (b), by
striking out the word "five" and inserting in lieu thereof the word
"six".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed House Bill No. 2984, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham,
Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Harrison, Minear and Oliverio--3.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H. B. No. 2984) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Helmick, Hunter, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Plymale, Prezioso, Sharpe, Sprouse,
Unger, Weeks, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Harrison, Minear and Oliverio--3.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2984) takes effect from passage.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 603, Relating to higher
education.
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 nine, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931,
as amended, be repealed; that sections §18B-2-1, §18B-2-2 and
§18B-2-3 of said code be repealed; that §18B-3-5 and §18B-3-7 of
said code be repealed; that §18B-5-2d of said code be repealed;
that §5-6-4a of said code be amended and reenacted; that §5G-1-2 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §12-1-12b; that §12-3-5,
§12-3-6, §12-3-7 and §12-3-8 of said code be amended and reenacted;
that §18-2-23a of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated
§18-2-24; that said code be amended by adding thereto a new
section, designated §18A-3-11; that §18A-3A-1 and §18A-3A-2b of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §18A-3A-6; that §18B-1-3
and §18B-1-6 of said code be amended and reenacted; that §18B-1A-2
and §18B-1A-6 of said code be amended and reenacted; that
§18B-1B-4, §18B-1B-5 and §18B-1B-6 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §18B-1B-13; that §18B-2A-3 and §18B-2A-4 of said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §18B-2A-7; that said code
be amended by adding thereto a new section, designated §18B-2B-9;
that §18B-3-1, §18B-3-2 and §18B-3-3 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §18B-3-4; that §18B-4-5, §18B-4-5a, §18B-4-6
and §18B-4-7 of said code be amended and reenacted; that §18B-5-3,
§18B-5-4, §18B-5-7 and §18B-5-9 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §18B-5-10; that §18B-10-1, §18B-10-5 and
§18B-10-6 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §18B-10-6a;
that said code be amended by adding thereto a new section,
designated §18B-11-7; and that §18B-14-11 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 6. STATE BUILDINGS.
§5-6-4a. Review of real property contracts and agreements; master
plan for office space.
(a) The Secretary of Administration shall provide to the Joint Committee on Government and Finance a copy of a contract or
agreement for real property exceeding one million dollars and a
report setting forth a detailed summary of the terms of the
contract or agreement, including the name of the owner of the
property and the agent involved in the sale, at least thirty days
prior to any sale, exchange, transfer, purchase, lease purchase,
lease or rental of real property, any refundings of lease
purchases, leases or rental agreements, any construction of new
buildings and any other acquisition or lease of buildings, office
space or grounds by any state agency, including the Higher
Education Policy Commission, but excepting the transactions of the
state institutions of higher education known as Marshall University
and West Virginia University and the Division of Highways for state
road purposes pursuant to article two-a, chapter seventeen of this
code: Provided, That a contract or agreement for the lease
purchase, lease or rental of real property by any state agency,
where the costs of real property acquisition and improvements are
to be financed, in whole or in part, with bond proceeds, may
contain a preliminary schedule of rents and leases for purposes of
review by the committee.
(b) For renewals of contracts or agreements required to be
reported by the provisions of this section, the Secretary of
Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the
name of the owner of the property.
(c) Within thirty days after receipt of the contract,
agreement or report, the committee shall meet and review the
contract, agreement or report.
(d) On or before the first day of July, two thousand six, the
Secretary of Administration shall conduct an inventory of available
office space and office space needs and shall develop and present
a master plan for the utilization of office space for state
agencies to the Joint Committee on Government and Finance.
(e) The governing boards of the state institutions of higher
education known as Marshall University and West Virginia University
shall provide to the Joint Committee on Government and Finance a
copy of any contract or agreement for real property exceeding one
million dollars and shall make available to the Joint Committee on
Government and Finance upon request a summary of the terms of the
contract or agreement, including the name of the owner of the
property and the agent involved in the sale.
CHAPTER 5G. PROCUREMENT OF ARCHITECT-ENGINEER SERVICES
BY STATE AND ITS SUBDIVISIONS.
ARTICLE 1. PROCUREMENT OF ARCHITECT-ENGINEER SERVICES.
§5G-1-2. Definitions.
As used in this section:
(a) The term "agency" means all state departments, agencies,
authorities, quasipublic corporations and all political
subdivisions, including cities, counties, boards of education and
public service districts, except, for the purposes of this section,
the term "agency" does not include the state institutions of higher
education known as Marshall University and West Virginia
University.
(b) The term "architectural and engineering services" includes
those professional services of an architectural or engineering
nature as well as incidental services that members of those
professions and those in their employ may logically or justifiably
perform.
(c) The term "director of purchasing" means any individual
assigned by any agency to procure the services of architects and
engineers.
(d) The term "firm" or "professional firm" means any
individual, firm, partnership, corporation, association or other
legal entity permitted by law to practice the professions of
architecture and engineering.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-12b. Pilot program for investments by Marshall University
and West Virginia University.
(a) Notwithstanding any provision of this article to the
contrary, the governing boards of Marshall University and West
Virginia University each may invest certain funds with its
respective nonprofit foundation that has been established to
receive contributions exclusively for that university and which
exists on the first day of January, two thousand five. Any such
investment is subject to the limitations of this section.
(b) A governing board, through its chief financial officer may
enter into agreements, approved as to form by the State Treasurer,
for the investment by its foundation of certain funds subject to
their administration. Any interest or earnings on the moneys
invested is retained by the investing university
(c) Moneys of a university that may be invested with its
foundation pursuant to this section are those subject to the
administrative control of the university that are collected under
an act of the Legislature for specific purposes, and do not include
any funds made available to the university from the state general
revenue fund or the funds established in sections eighteen or
eighteen-a, article twenty-two, chapter twenty-nine of this code.
Moneys permitted to be invested under this section may be
aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section,
Marshall University and West Virginia University each, respectively, may have invested with its foundation at any time not
more than the greater of:
(1) Eighteen million dollars for Marshall University and
twenty-five million dollars for West Virginia University; or
(2) Sixty-five percent of its unrestricted net assets as
presented in the statement of net assets for the fiscal year end
audited financial reports.
(e) Investments by foundations that are authorized under this
section shall be made in accordance with and subject to the
provisions of the "Uniform Prudent Investor Act" codified as
article six-c, chapter forty-four of this code. As part of its
fiduciary responsibilities, each governing board shall establish
investment policies in accordance with the Uniform Prudent Investor
Act for those moneys invested with its foundation. The governing
board shall review, establish and modify, if necessary, the
investment objectives as incorporated in its investment policies so
as to provide for the financial security of the moneys invested
with its foundation. The governing boards shall give consideration
to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by the thirty-
first day of December, to the Governor and to the Joint Committee
on Government and Finance on the performance of investments managed
by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with
its foundation pursuant to this section expires on the first day of
July, two thousand ten.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-5. When requisition to Auditor sufficient authority for
issuing warrant.
(a) When an appropriation has been made by law, subject to the
order or payable on the requisition of a particular officer, board
or person, the order or written or electronic requisition in
writing of such officer, board, or person shall be is sufficient
authority to the Auditor to issue his a warrant for the same or any
party thereof.
(b) The Auditor:
(1) Shall accept an electronic requisition from Marshall
University and West Virginia University;
(2) May accept an electronic requisition from any entity other
than Marshall University or West Virginia University at his or her
discretion; and
(3) May not issue a warrant for an amount that exceeds the
appropriation or for an expired appropriation. Provided, That the
appropriation has not expired and the amount thereof shall not be
exceeded.
§12-3-6. Requisitions on behalf of state boards and institutions.
Appropriations
(a) An appropriation made to or for any state board or
institution shall be drawn from the Treasury upon the requisition
of the proper officers an appropriate officer thereof made upon to
the Auditor at such times and in such amounts as may be is
necessary for the purposes for which such appropriations are the
appropriation is made. and The Auditor shall pay the amount named
in any such the requisition at such times and in such installments
as shall be are necessary for the purposes for which any such the
appropriation is made.
But all requisitions for appropriations
(b) Except as provided in subsection (c) of this section, a
requisition for appropriation for new buildings and substantial
betterments except such as are under control of the state
commissioner of public institutions shall be accompanied by the architect's estimate that the amount named in such the requisition
is needed for immediate use.
(c) The provisions of subsection (b) of this section do not
apply to a requisition from:
(1) An institution from which the Auditor is required to
accept an electronic requisition. Such an institution is not
required to submit the documentation required in subsection (b) of
this section, but shall maintain the documentation for inspection
at the Auditor's request; and
(2) The Commissioner of Corrections.
(d) The Auditor shall not may issue his a warrant to pay any
money out of the State Treasury unless the same only if the money
is needed for the present use.
§12-3-7. Payment of compensation and expenses of members of state
boards and commissions; embezzlement.
The members of all state boards and commissions, unless a
different rate of compensation is provided by law, shall be allowed
(a) Unless otherwise provided by law, a member of any state
board or commission:
(1) Receives four dollars per day for each day necessarily
employed as such, including the time spent in going traveling to
and returning from the place of meeting location; and
(2) Receives the actual and necessary expenses incurred by them in the discharge of their his or her duties; and
(3) Does not receive mileage reimbursement. except where it
is otherwise specifically provided no mileage shall be paid. But
before payment to any such member of any such compensation or
expenses, he shall make up
(b) Prior to receiving compensation or expense reimbursement:
(1) The member prepares in duplicate and certify to the
correctness of an itemized statement specifying of the number of
days spent (giving dates) and of the expenses incurred;
(2) The member certifies the accuracy of the itemized
statement;
(3) which statement shall be delivered The member delivers the
original to the secretary or clerk of the institution on behalf of
which the duties are performed, the original whereof the secretary
or clerk shall file or preserve in his office, and board or
commission for preservation in its office; and
(4) The secretary or clerk immediately forwards the duplicate
of which he shall at once forward to the Auditor.
(c) If any such member shall willfully make makes a greater
charge of such services or expenses than truth justified, he shall
be or she is guilty of embezzlement and punished accordingly.
(d) The governing board of Marshall University and West
Virginia University each satisfies the requirements of subsection (b) of this section by maintaining the member's original itemized,
certified statement and submitting an electronic requisition to the
Auditor.
§12-3-8. Requisition on behalf of institutions to be accompanied
by statement showing funds on hand.
No requisition shall be A requisition made upon the Auditor
for any money appropriated for the a penitentiary; state
correctional facility; the West Virginia schools School for the
Deaf and Blind; state mental health facilities; state hospitals;
corrections facilities; or for Marshall University; West Virginia
University; any other public institution for education, charity or
correction; or institutions governed by the university of West
Virginia board of trustees by the board of directors of the state
college system, unless such requisition under the jurisdiction of
the Higher Education Policy Commission or the West Virginia Council
for Community and Technical College Education shall be accompanied
by the statement in writing of the treasurer or other a written or
electronic statement of a financial officer of such the
institution, showing the amount of money in his or her hands to the
credit of such the institution, or otherwise in its control, on the
day such the requisition is forwarded for payment.
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-23a. Annual professional staff development goals established
by State Board; coordination of professional development
programs; program development, approval and evaluation.
(a) Legislative intent. -- The intent of this section is:
(1) To provide for the coordination of professional
development programs by the State Board; and
(2) To promote high-quality instructional delivery and
management practices for a thorough and efficient system of
schools; and
(3) To ensure that the expertise and experience of state
institutions of higher education with teacher preparation programs
are included in developing and implementing professional
development programs.
(b) Goals. -- The State Board annually shall establish goals
for professional staff development in the public schools of the
state. As a first priority, the State Board shall require adequate
and appropriate professional staff development to ensure high
quality teaching that will enable students to achieve the content
standards established for the required curriculum in the public
schools.
The State Board shall submit the goals to the State Department
of Education, the Center for Professional Development, the regional
educational service agencies, the Higher Education Policy Commission and the Legislative Oversight Commission on Education
Accountability on or before the fifteenth day of January each year.
The goals shall include measures by which the effectiveness of
the professional staff development programs will be evaluated. The
professional staff development goals may shall include separate
goals for teachers, principals and paraprofessional service
personnel and may include separate goals for classroom aides and
others in the public schools.
In establishing the goals, the State Board shall review
reports that may indicate a need for professional staff development
including, but not limited to, the report of the Center for
Professional Development created in article three-a, chapter
eighteen-a of this code, student test scores on the statewide
student assessment program, the measures of student and school
performance for accreditation purposes, school and school district
report cards and its plans for the use of funds in the strategic
staff development fund pursuant to section thirty-two, article two,
chapter eighteen of this code.
(c) The Center for Professional Development shall design a
proposed professional staff development program plan to achieve the
goals of the State Board and shall submit the proposed plan to the
State Board for approval as soon as possible following receipt of
the State Board goals each year. In developing and implementing this plan, the Center first shall rely upon the available expertise
and experience of state institutions of higher education before
procuring advice, technical assistance or consulting services from
sources outside the state.
The proposed plan shall include a strategy for evaluating the
effectiveness of the professional staff development programs
delivered under the plan and a cost estimate. The State Board
shall review the proposed plan and return it to the Center for
Professional Development noting whether the proposed plan is
approved or is not approved, in whole or in part. If a proposed
plan is not approved in whole, the State Board shall note its
objections to the proposed plan or to the parts of the proposed
plan not approved and may suggest improvements or specific
modifications, additions or deletions to address more fully the
goals or eliminate duplication. If the proposed plan is not wholly
approved, the Center for Professional Development shall revise the
plan to satisfy the objections of the State Board. State board
approval is required prior to implementation of the professional
staff development plan.
(d) The State Board approval of the proposed professional
staff development plan shall establish a Master Plan for
Professional Staff Development which shall be submitted by the
State Board to the affected agencies and to the Legislative Oversight Commission on Education Accountability. The Master Plan
shall include the State Board-approved plans for professional staff
development by the State Department of Education, the Center for
Professional Development, the state institutions of higher
education and the regional educational service agencies to meet the
professional staff development goals of the State Board. The
Master Plan also shall include a plan for evaluating the
effectiveness of the professional staff development delivered
through the programs and a cost estimate.
The Master Plan shall serve as a guide for the delivery of
coordinated professional staff development programs by the State
Department of Education, the Center for Professional Development,
the state institutions of higher education and the regional
educational service agencies beginning on the first day of June in
the year in which the Master Plan was approved through the
thirtieth day of May in the following year. Provided, That nothing
in this section shall This section does not prohibit changes in the
Master Plan, subject to State Board approval, to address staff
development needs identified after the Master Plan was approved.
§18-2-24. Collaboration of state institutions of higher education
having a teacher preparation program with the Center for
Professional Development and the regional education service
agencies.
(a) For the purposes of this section "teacher preparation
institution" means a state institution of higher education with a
teacher preparation program.
(b) The intent of this section is to establish a structure to
enhance collaboration between the teacher preparation institutions,
the Center for Professional Development and the regional education
service agencies in providing professional development.
(c) The Legislature finds that:
(1) There is insufficient collaboration of the teacher
preparation institutions with the Center for Professional
Development and each of the regional education service agencies;
(2) More collaboration would prevent duplication of services
and result in higher quality professional development;
(3) Creating a structure and assigning responsibility would
promote more effective collaboration;
(4) The state's research and doctoral degree-granting public
institutions of higher education, West Virginia University and
Marshall University, have the most capacity to be important sources
of research and expertise on professional development;
(5) West Virginia University and Marshall University are the
only institutions in the state that offer course work leading to a
doctoral degree in education administration;
(6) As the largest state institutions of higher education, West Virginia University and Marshall University have more capacity
than any other institution in the state to handle the additional
responsibilities assigned in this section;
(7) The coordination by West Virginia University and Marshall
University of the efforts of other teacher preparation institutions
to collaborate with the Center for Professional Development and
each of the regional education service agencies will provide points
of accountability for the collaboration efforts of the other
institutions; and
(8) The State Board's authority over the regional education
service agencies can be used to motivate the agencies to
collaborate with the teacher preparation institutions in providing
professional development and will serve as a point of
accountability for the collaboration efforts of the agencies.
(d) West Virginia University and Marshall University shall
collaborate with the Center for Professional Development in
performing the Center's duties. This collaboration shall include
at least the following:
(1) Including the teacher preparation institutions in the
proposed professional staff development program plan required to be
submitted to the State Board by section twenty-three-a of this
article;
(2) Providing any available research-based expertise that would be helpful in the design of the proposed professional staff
development program plan;
(3) Providing any available research-based expertise that
would be helpful in the implementation of professional development
programs; and
(4) Arranging for other state institutions of higher education
having a teacher preparation program to assist the Center when that
assistance would be helpful.
(e) All teacher preparation institutions shall collaborate
with the regional education service agency of the service area in
which the institution is located at least to:
(1) Prevent unnecessary duplication of services;
(2) Assist in the implementation of the professional
development programs of the regional education service agency; and
(3) Assist the regional education service agency in obtaining
any available grants for professional development or to apply for
any available grant with the agency collaboratively.
(f) Since no teacher preparation institution exists in the
service area of Regional Education Service Agency IV, Marshall
University shall collaborate with that Agency for the purposes set
forth in subdivision (e) of this section.
(g) In addition to the collaboration required by subsections
(e) and (f) of this section of all teacher preparation institutions, West Virginia University and Marshall University
shall:
(1) Coordinate the collaboration of each of the other teacher
preparation institutions in their designated coordination area with
the appropriate regional education service agency. This
coordination at least includes ensuring that each of the other
institutions are collaborating with the appropriate regional
education service agency; and
(2) Collaborate with each of the other teacher preparation
institutions in their designated coordination area. This
collaboration at least includes providing assistance to the other
institutions in providing professional development and in their
collaboration with the appropriate regional education service
agency.
(h) The designated coordination area of West Virginia
University includes the service areas of Regional Education Service
Agencies V, VI, VII and VIII. The designated coordination area of
Marshall University includes the service areas of Regional
Education Service Agencies I, II, III and IV.
(i) The State Board shall ensure that each of the regional
education service agencies is collaborating with the teacher
preparation institution or institutions in its service area for the
purposes set forth in subsection (e) of this section. Since Regional Education Service Agency IV does not have a teacher
preparation institution in its service area, the State Board shall
ensure that it is collaborating with Marshall University for the
purposes set forth in subsection (e) of this section.
(j) Before a regional education service agency, except for
Regional Education Service Agency IV, obtains professional
development related services or expertise from any teacher
preparation institution outside of that agency's service area, the
agency shall inform the Center for Professional Development Board.
Before Regional Education Service Agency IV obtains professional
development related services or expertise from any teacher
preparation institution other than Marshall University, the agency
shall inform the Center Board.
(k) The collaboration and coordination requirements of this
section include collaborating and coordinating to provide
professional development for at least teachers, principals and
paraprofessionals.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-11. Study of professional development standards and best
practices.
The Legislative Oversight Commission on Education Accountability shall cause a study to be conducted to determine and
to recommend standards and best practices for professional
development that are focused on advancing student achievement. The
study and a final report of recommendations shall be completed
prior to the first day of September, two thousand five. The
Commission shall submit the final report to the Joint Committee on
Government and Finance. The Commission shall determine if
resources to assist in the completion of the study are available
from sources other than public funds and shall report such to the
Joint Committee.
ARTICLE 3A. CENTER FOR PROFESSIONAL DEVELOPMENT.
§18A-3A-1. Center for Professional Development; intent and
mission; Principals Academy curriculum and expenses;
authorization to charge fees.
(a) Teaching is a profession that directly correlates to the
social and economic well-being of a society and its citizens.
Superior teaching is essential to a well-educated and productive
populace. Strong academic leadership provided by principals and
administrators skilled in modern management principles is also
essential. The intent of this article is to recognize the value of
professional involvement by experienced educators, principals and
administrators in building and maintaining a superior force of
professional educators and to establish avenues for applying such this involvement.
(b) The general mission of the Center is to advance the
quality of teaching and management in the schools of West Virginia
through: (1) The implementation primarily of statewide training,
professional staff development, including professional staff
development for at least teachers, principals and
paraprofessionals, and technical assistance programs and practices
as recommended by the State Board to assure the highest quality of
teaching and management; and (2) the provision of technical and
other assistance and support to regional and local education
agencies in identifying and providing high quality professional
staff development, including professional staff development for at
least teachers, principals and paraprofessionals, and training
programs and implementing best practices to meet their locally
identified needs. The Center also may implement local programs if
the State Board, in its Master Plan for Professional Staff
Development established pursuant to section twenty-three-a, article
two, chapter eighteen of this code, determines that there is a
specific local need for the programs. Additionally, the Center
shall perform such other duties as are assigned to it by law.
Nothing in this article shall be construed to require any
specific level of funding by the Legislature.
(c) The Center Board shall consist of eleven persons as follows: The Secretary of Education and the Arts, ex officio, and
the State Superintendent, of schools ex officio, both of whom shall
be entitled to vote; three members of the State Board, elected by
the State Board; three experienced educators, of whom two shall be
working classroom teachers and one of whom shall be a school or
county administrator appointed by the Governor by and with the
advice and consent of the Senate, all of whom shall be experienced
educators who have achieved recognition for their superior
knowledge, ability and performance in teaching or management, as
applicable; and three citizens of the state, one of whom shall be
a representative of public higher education and all of whom shall
be knowledgeable in matters relevant to the issues addressed by the
Center, including, but not limited to, professional development and
management principles, appointed by the Governor by and with the
advice and consent of the Senate. Not more than two appointees
shall be residents within the same congressional district. The
Center Board shall be cochaired by the Secretary of Education and
the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members
elected from the State Board may serve no more than two consecutive
two-year terms. The State Board shall elect another member to fill
the unexpired term of any person so elected who subsequently
vacates State Board membership. Of the initial appointed members, three shall be appointed for one-year terms and three shall be
appointed for two-year terms. All successive appointments shall be
for two-year terms. An experienced educator may serve no more than
two consecutive two-year terms. The Governor shall appoint a new
member to fill the unexpired term of any vacancy in the appointed
membership.
The Center for Professional Development Board is
reconstituted, and all terms of members elected or appointed prior
to the effective date of this section are expired. The Center
Board shall consists of thirteen persons as follows:
(1) The Secretary of Education and the Arts, ex officio, and
the State Superintendent, ex officio, each of whom is:
(A) Entitled to vote; and
(B) A Cochair of the Board.
(2) Two members of the State Board, elected by the State
Board;
(3) One person employed by West Virginia University and one
person employed by Marshall University, both of whom are:
(A) Appointed by the President of the employing institution;
(B) Faculty in the teacher education section of the employing
institution; and
(C) Knowledgeable in matters relevant to the issues addressed
by the Center;
(4) One Regional Education Service Agency Executive Director,
elected by all of the Regional Education Service Agency Executive
Directors;
(5) Three experienced educators, of whom one is a working
classroom teacher, one is a school principal and one is a county
administrator. All such educators are:
(A) Appointed by the Governor by and with the advice and
consent of the Senate;
(B) Experienced educators who have achieved recognition for
their superior knowledge, ability and performance in teaching or
management, as applicable; and
(C) Knowledgeable in matters relevant to the issues addressed
by the Center; and
(6) Three citizens of the state who are:
(A) Knowledgeable in matters relevant to the issues addressed
by the Center, including, but not limited to, professional
development and management principles; and
(B) Appointed by the Governor by and with the advice and
consent of the Senate.
(C) Not more than two such members may be residents within the
same congressional district.
(d) Each appointment and election is for a two-year term.
Such members may serve no more than two consecutive two-year terms.
(1) The State Board shall elect another member to fill the
unexpired term of any person who vacates State Board membership.
(2) The Regional Education Service Agency Executive Directors
shall elect an executive director to fill the unexpired term of any
executive director who ceases to be employed in that capacity.
(3) Of the initial members appointed by the Governor, three
are appointed for one-year terms and three are appointed for
two-year terms. Each successive appointment by the Governor is for
a two-year term. The Governor shall appoint a new member to fill
the unexpired term of any vacancy in the appointed membership.
(4) The President of West Virginia University and Marshall
University each appoints an employee to fill the unexpired term of
any member who ceases to be employed by that institution.
(d) (e) The Center for Professional Development Board shall
meet at least quarterly and the appointed 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 those purposes upon submission
of an itemized statement therefor.
(e) from appropriations to the Center for Professional
Development, the Center Board shall employ and fix the compensation
of an Executive Director with knowledge and experience in
professional development and management principles and such other staff as may be necessary to carry out the mission and duties of
the Center. The Executive Director shall serve at the will and
pleasure of the Center Board. The Executive Director of the Center
also shall serve as the chair of the Principals Standards Advisory
Council created in section two-c, article three of this chapter and
shall convene regular meetings of this council to effectuate the
purposes of this council.
(f) The position of Executive Director is abolished. The
Governor shall appoint, by and with the advice and consent of the
Senate, a Chief Executive Officer with knowledge and experience in
professional development and management principles. Any reference
in this code to the Executive Director of the Center for
Professional Development means the Chief Executive Officer. From
appropriations to the Center for Professional Development, the
Center Board sets the salary of the Chief Executive Officer. The
Center Board, upon the recommendation of the Chief Executive
Officer, may employ other staff necessary to carry out the mission
and duties of the Center. The Chief Executive Officer serves at
the will and pleasure of the Governor. Annually, the Center Board
shall evaluate the Chief Executive Officer, and shall report the
results to the Governor. The duties of the Chief Executive Officer
include:
(1) Managing the daily operations of the Center;
(2) Ensuring the implementation of the Center's mission;
(3) Ensuring collaboration of the Center with other
professional development providers;
(4) Requesting from the Governor and the Legislature any
resources or statutory changes that would help in enhancing the
collaboration of all professional development providers in the
state, in advancing the quality of professional development through
any other means or both;
(5) Serving as the chair of the Principals Standards Advisory
Council created in section two-c, article three of this chapter and
convening regular meetings of this Council to effectuate its
purposes; and
(6) Other duties as assigned by the Governor or the Center
Board.
(g) When practicable, personnel employed by state higher
education agencies and state, regional and county public education
agencies shall be made available to the Center to assist in the
operation of projects of limited duration, subject to the
provisions of section twenty-four, article two, chapter eighteen of
this code.
(f) (h) The Center shall assist in the delivery of programs
and activities pursuant to this article to meet statewide, and if
needed as determined by the goals and Master Plan for Professional Staff Development established by the State Board pursuant to
section twenty-three-a, article two, chapter eighteen of this code,
the local professional development needs of paraprofessionals,
teachers, principals and administrators and may contract with
existing agencies or agencies created after the effective date of
this section or others to provide training programs in the most
efficient manner. Existing programs currently based in agencies of
the state shall be continued in the agency of their origin unless
the Center establishes a compelling need to transfer or cancel the
existing program. The Center shall recommend to the Governor the
transfer of funds to the providing agency, if needed, to provide
programs approved by the Center.
(g) (i) The Center for Professional Development shall
implement training and professional development programs for the
Principals Academy based upon the minimum qualities, proficiencies
and skills necessary for principals in accordance with the
standards established by the State Board pursuant to the terms of
section two-c, article three of this chapter.
(h) (j) In accordance with section two-c, article three of
this chapter, the Center shall be responsible for paying reasonable
and necessary expenses for persons attending the Principals
Academy: Provided, That nothing in this section shall be construed
to require any specific level of funding by the Legislature.
(i) (k) Persons attending the professional development
offerings of the Center and such other courses and services as
shall be offered by the Center for Professional Development, except
the Principals Academy shall be assessed fees which shall be less
than the full cost of attendance. There is hereby created in the
State Treasury a special revenue account known as the "Center for
Professional Development Fund". All moneys collected by the Center
shall be deposited in the fund for expenditure by the Center Board
for the purposes specified in this section. Moneys remaining in
the fund at the end of the fiscal year are subject to
reappropriation by the Legislature.
(l) The Center Board shall make collaboration with the State
Board in providing professional development services in the
following areas a priority:
(1) Services to those public schools selected by the State
Superintendent pursuant to section three-g, article two-e, chapter
eighteen of this code; and
(2) Services in any specific subject matter area that the
State Board, the Legislature or both, determine is justified due to
a need to increase student achievement in that area.
§18A-3A-2b. The Principals Academy.
(a) There is hereby established within the Center for
Professional Development the "Principals Academy". Training through the Principals Academy shall include at least the
following:
(a) (1) Training designed to build within principals the
minimum qualities, proficiencies and skills that will be required
of all principals pursuant to the rules of the State Board;
(b) (2) Specialized training and professional development
programs for all principals; and
(c) (3) Specialized training and professional development
programs for the following principals:
(1) (A) Newly appointed principals;
(2) (B) Principals whose schools have been designated as
seriously impaired, which programs shall commence as soon as
practicable following the designation;
(3) (C) Principals subject to improvement plans; and
(4) (D) Principals of schools with significantly different
grade level configurations.
(b) The Legislature finds that the quality of the principal of
a school is one of the most important factors in determining the
academic achievement of students and that well-trained, highly
qualified principals should be a priority for the state.
(b) The Legislature further finds that while the Principals
Academy has been effective in training quality leaders for the
state's public schools, the training provided is such a significant factor in determining their success that a new position is needed
to coordinate and focus primarily on the Principals Academy to
increase further the quality of the training.
(c) Therefore, from appropriations to the Center for
Professional Development, the Center Board shall employ and fix the
compensation of the Coordinator of the Principals Academy. The
Coordinator serves at the will and pleasure of the Center Board.
It is the duty of the Coordinator, subject to direction and
oversight by the Center and the Chief Executive Officer, to lead
the Principals Academy, to focus primarily on the Principals
Academy and to make a continuous effort to enhance further the
quality of the training and professional development programs of
the Academy. The Center Board, the Chief Executive Officer, or
both, may assign duties to the coordinator other than those that
relate to the Principals Academy so long as the Coordinator is able
to focus primarily on the Principals Academy.
§18A-3A-6. Attendance outside the employment term.
(a) A professional educator may not be required to attend the
principals academy or any other program offered through the Center
for Professional Development outside his or her employment term.
A professional educator may attend the Academy or other program
outside his or her employment term by mutual agreement between the
Center, the educator, and his or her employer.
(b) The provisions of this section expire on the first day of
July, two thousand six.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-3. Transfer of powers, duties, property, obligations, etc.
(a) All powers, duties and authorities transferred to the
Board of Regents pursuant to former provisions of chapter eighteen
of this code and transferred to the Board of Trustees and Board of
Directors which were created as the governing boards pursuant to
the former provisions of this chapter and all powers, duties and
authorities of the Board of Trustees and Board of Directors, to the
extent they are in effect on the seventeenth day of June, two
thousand, are hereby transferred to the Interim Governing Board
created in article one-c of this chapter and shall be exercised and
performed by the Interim Governing Board until the first day of
July, two thousand one, as such powers, duties and authorities may
apply to the institutions under its jurisdiction.
(b) Title to all property previously transferred to or vested
in the Board of Trustees and the Board of Directors and property
vested in either of the boards separately, formerly existing under
the provisions of this chapter, are hereby transferred to the
Interim Governing Board created in article one-c of this chapter
until the first day of July, two thousand one. Property transferred to or vested in the Board of Trustees and Board of
Directors shall include:
(1) All property vested in the Board of Governors of West
Virginia University and transferred to and vested in the West
Virginia Board of Regents;
(2) All property acquired in the name of the State Board of
Control or the West Virginia Board of Education and used by or for
the state colleges and universities and transferred to and vested
in the West Virginia Board of Regents;
(3) All property acquired in the name of the State Commission
on Higher Education and transferred to and vested in the West
Virginia Board of Regents; and
(4) All property acquired in the name of the Board of Regents
and transferred to and vested in the respective Board of Trustees
and Board of Directors.
(c) Each valid agreement and obligation previously transferred
to or vested in the Board of Trustees and Board of Directors
formerly existing under the provisions of this chapter is hereby
transferred to the Interim Governing Board until the first day of
July, two thousand one, as those agreements and obligations may
apply to the institutions under its jurisdiction. Valid agreements
and obligations transferred to the Board of Trustees and Board of
Directors shall include:
(1) Each valid agreement and obligation of the Board of
Governors of West Virginia University transferred to and deemed the
agreement and obligation of the West Virginia Board of Regents;
(2) Each valid agreement and obligation of the State Board of
Education with respect to the state colleges and universities
transferred to and deemed the agreement and obligation of the West
Virginia Board of Regents;
(3) Each valid agreement and obligation of the State
Commission on Higher Education transferred to and deemed the
agreement and obligation of the West Virginia Board of Regents; and
(4) Each valid agreement and obligation of the Board of
Regents transferred to and deemed the agreement and obligation of
the respective Board of Trustees and Board of Directors.
(d) All orders, resolutions and rules adopted or promulgated
by the respective Board of Trustees and Board of Directors and in
effect immediately prior to the first day of July, two thousand,
are hereby transferred to the Interim Governing Board until the
first day of July, two thousand one, and shall continue in effect
and shall be deemed the orders, resolutions and rules of the
Interim Governing Board until rescinded, revised, altered or
amended by the Commission or the governing boards in the manner and
to the extent authorized and permitted by law. Such orders,
resolutions and rules shall include:
(1) Those adopted or promulgated by the Board of Governors of
West Virginia University and in effect immediately prior to the
first day of July, one thousand nine hundred sixty-nine, unless and
until rescinded, revised, altered or amended by the Board of
Regents in the manner and to the extent authorized and permitted by
law;
(2) Those respecting state colleges and universities adopted
or promulgated by the West Virginia Board of Education and in
effect immediately prior to the first day of July, one thousand
nine hundred sixty-nine, unless and until rescinded, revised,
altered or amended by the Board of Regents in the manner and to the
extent authorized and permitted by law;
(3) Those adopted or promulgated by the State Commission on
Higher Education and in effect immediately prior to the first day
of July, one thousand nine hundred sixty-nine, unless and until
rescinded, revised, altered or amended by the Board of Regents in
the manner and to the extent authorized and permitted by law; and
(4) Those adopted or promulgated by the Board of Regents prior
to the first day of July, one thousand nine hundred eighty-nine,
unless and until rescinded, revised, altered or amended by the
respective Board of Trustees or Board of Directors in the manner
and to the extent authorized and permitted by law.
(e) Title to all real property transferred to or vested in the Interim Governing Board pursuant to this section of the code is
hereby transferred to the Commission effective the first day of
July, two thousand one. The board of governors for each
institution may request that the Commission transfer title to the
board of governors of any real property specifically identifiable
with that institution or the Commission may initiate the transfer.
Any such request must be made within two years of the effective
date of this section and be accompanied by an adequate legal
description of the property. In the case of real property that is
specifically identifiable with Marshall University or West Virginia
University, the Commission shall transfer title to all real
property, except real property that is used jointly by institutions
or for statewide programs under the jurisdiction of the Commission
or the Council, to the Board of Governors of Marshall University or
West Virginia University, as appropriate, upon receipt of a request
from the appropriate governing board accompanied by an adequate
legal description of the property.
The title to any real property that is jointly utilized by
institutions or for statewide programs under the jurisdiction of
the Commission or the Council shall be retained by the Commission.
(f) Ownership of or title to any other property, materials,
equipment or supplies obtained or purchased by the Interim
Governing Board or the previous governing boards on behalf of an institution is hereby transferred to the board of governors of that
institution effective the first day of July, two thousand one.
(g) Each valid agreement and obligation previously transferred
or vested in the Interim Governing Board and which was undertaken
or agreed to on behalf of an institution or institutions is hereby
transferred to the board of governors of the institution or
institutions for whose benefit the agreement was entered into or
the obligation undertaken effective the first day of July, two
thousand one.
(1) The obligations contained in revenue bonds issued by the
previous governing boards under the provisions of section eight,
article ten of this chapter and article twelve-b, chapter eighteen
of this code are hereby transferred to the Commission and each
institution shall transfer to the Commission those funds the
Commission determines are necessary to pay that institution's share
of bonded indebtedness.
(2) The obligations contained in revenue bonds issued on
behalf of a state institution of higher education pursuant to any
other section of this code is hereby transferred to the board of
governors of the institution on whose behalf the bonds were issued.
(h) All orders, resolutions, policies and rules:
(1) Adopted or promulgated by the respective Board of
Trustees, Board of Directors or Interim Governing Board and in effect immediately prior to the first day of July, two thousand
one, are hereby transferred to the Commission effective the first
day of July, two thousand one, and continue in effect until
rescinded, revised, altered, amended or transferred to the
governing boards by the Commission as provided in this section and
in section six of this article.
(2) Adopted or promulgated by the Commission relating solely
to community and technical colleges or community and technical
college education, or rules which the Council finds necessary for
the exercise of its lawful powers and duties pursuant to the
provisions of this chapter, may be adopted by the Council and
continue in effect until rescinded, revised, altered, amended or
transferred to the governing boards under the jurisdiction of the
Council pursuant to section six of this article. Nothing in this
section requires the initial rules of the Commission that are
adopted by the Council to be promulgated again under the procedure
set forth in article three-a, chapter twenty-nine-a of this code
unless such rules are rescinded, revised, altered or amended.
(3) Adopted or promulgated by the Commission relating to
multiple types of public institutions of higher education or
community and technical college education as well as baccalaureate
and post-baccalaureate education are transferred to the Council in
part as follows:
(A) That portion of the rule relating solely to community and
technical colleges or community and technical college education is
transferred to the Council and continues in effect until rescinded,
revised, altered, amended or transferred to the governing boards by
the Council as provided in this section and in section six of this
article;
(B) That portion of the rule relating to institutions or
education other than community and technical colleges is retained
by the Commission and continues in effect until rescinded, revised,
altered, amended or transferred to the governing boards by the
Commission as provided in this section and in section six of this
article.
(i) The Commission may, in its sole discretion, transfer any
rule, other than a legislative rule, to the jurisdiction of the
governing boards of the institutions under its jurisdiction who may
rescind, revise, alter or amend any rule so transferred pursuant to
rules adopted by the Commission pursuant to section six of this
article.
The Council may, in its sole discretion, transfer any rule,
other than a legislative rule, to the jurisdiction of the governing
boards of the institutions under its jurisdiction who may rescind,
revise, alter or amend any rule so transferred pursuant to rules
adopted by the Council pursuant to section six of this article.
(j) As to any title, agreement, obligation, order, resolution,
rule or any other matter about which there is some uncertainty,
misunderstanding or question, the matter shall be summarized in
writing and sent to the Commission which shall make a determination
regarding such matter within thirty days of receipt thereof.
(k) Rules or provisions of law which refer to other provisions
of law which were repealed, rendered inoperative or superseded by
the provisions of this section shall remain in full force and
effect to such extent as may still be applicable to higher
education and may be so interpreted. Such references include, but
are not limited to, references to sections and prior enactments of
article twenty-six, chapter eighteen of this code and code
provisions relating to retirement, health insurance, grievance
procedures, purchasing, student loans and savings plans. Any
determination which needs to be made regarding applicability of any
provision of law shall first be made by the Commission.
§18B-1-6. Rulemaking.
(a) The Commission is hereby empowered to promulgate, adopt,
amend or repeal rules, in accordance with the provisions of article
three-a, chapter twenty-nine-a of this code, subject to the
provisions of section three of this article.
(b) The Council is hereby empowered to promulgate, adopt,
amend or repeal rules, in accordance with the provisions of article three-a, chapter twenty-nine-a of this code and subject to the
provisions of section three of this article. This grant of
rule-making power extends only to those areas over which the
Council has been granted specific authority and jurisdiction by
law.
(c) As it relates to the authority granted to governing boards
of state institutions of higher education to promulgate, adopt,
amend or repeal any rule under the provisions of this code:
(1) "Rule" means any regulation, guideline, directive,
standard, statement of policy or interpretation of general
application which has institutionwide effect or which affects the
rights, privileges or interests of employees, students or citizens.
Any regulation, guideline, directive, standard, statement of policy
or interpretation of general application that meets this definition
is a rule for the purposes of this section.
(2) Regulations, guidelines or policies established for
individual units, divisions, departments or schools of the
institution, which deal solely with the internal management or
responsibilities of a single unit, division, department or school
or with academic curricular policies that do not constitute a
mission change for the institution, are excluded from this
subsection, except for the requirements relating to posting.
(c) (3) The Commission and Council each shall promulgate a rule to guide the development and approval of rules guidelines and
other policy statements made by their respective governing boards,
including the governing boards of Marshall University and West
Virginia University. The rules promulgated by the Commission and
Council shall include, but are not limited to, the following
provisions which shall be included in the rule on rules adopted by
each governing board of a state institution of higher education:
(1) (A) A procedure to ensure that public notice is given and
that the right of interested parties to have a fair and adequate
opportunity to respond is protected, including providing for a
thirty-day public comment period prior to final adoption of a rule;
(2) (B) Designation of a single location where all proposed
and approved rules, guidelines and other policy statements are
posted and can be accessed by the public; and
(3) (C) A procedure to maximize Internet access to all
proposed and approved rules, guidelines and other policy statements
to the extent technically and financially feasible.
(d) On and after the effective date of this section, and
notwithstanding any other provision of this code to the contrary,
any rule heretofore required by law to be promulgated as a
legislative rule prior to the first day of July, two thousand one,
may not be considered to be a legislative rule for the purposes of
article three-a, chapter twenty-nine-a of this code except for the following:
(1) The legislative rule required by subsection (c), section
eight of this article;
(2) The legislative rule required by section eight-a of this
article;
(3) The legislative rule required by section two, article
one-a of this chapter;
(4) The legislative rule required by section four, article
one-b of this chapter;
(5) The legislative rule required by section one, article
three, chapter eighteen-c of this code;
(6) The legislative rule required by section one, article
four, chapter eighteen-c of this code;
(7) The legislative rule required by section seven, article
five, chapter eighteen-c of this code; and
(8) The legislative rule required by section one, article six,
chapter eighteen-c of this code.
(e) (d) Nothing in this section requires that any rule
reclassified or transferred by the Commission or the Council under
this section be promulgated again under the procedures set out in
article three-a, chapter twenty-nine-a of this code unless the rule
is amended or modified.
(f) (e) The Commission and Council each shall file with the Legislative Oversight Commission on Education Accountability any
rule it proposes to promulgate, adopt, amend or repeal under the
authority of this article.
(f) The governing boards of Marshall University and West
Virginia University, respectively, shall promulgate and adopt any
rule which they are required to adopt by this chapter or chapter
eighteen-c of this code no later than the first day of July, two
thousand six. On and after this date:
(1) Any rule of either governing board which meets the
definition set out in subsection (c) of this section and which has
not been promulgated and adopted by formal vote of the appropriate
governing board is void and may not be enforced;
(2) Any authority granted by this code which inherently
requires the governing board to promulgate and adopt a rule is void
until the governing board complies with the provisions of this
section.
(g) Within thirty days of the adoption of a rule, including
repeal or amendment of an existing rule, the governing boards of
Marshall University and West Virginia University, respectively,
shall furnish to the Commission or the Council, as appropriate, a
copy of each rule which has been formally adopted;
(h) Not later than the first day of October, two thousand
five, and annually thereafter, each governing board of a state institution of higher education shall file with the Commission or
the Council, as appropriate, a list of all institutional rules that
were in effect for that institution on the first day of July of
that year, including the most recent date on which each rule was
considered and adopted, amended or repealed by the governing board.
For all rules adopted, amended or repealed after the effective date
of this section, the list shall include a statement by the chair of
the governing board certifying that the governing board has
complied with the provisions of this section when each listed rule
was adopted.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST
VIRGINIA.
§18B-1A-2. Institutional compacts with state institutions of
higher education; establishment and review process.
(a) Each state college and university shall prepare an
institutional compact for submission to the Commission. Each
community and technical college shall prepare an institutional
compact for submission to the Council. When the process herein
provided is completed, the institutional compacts shall form the
agreements between the institutions of higher education and the
Commission or Council, respectively, and, ultimately, between the
institutions of higher education and the people of West Virginia on
how the institutions will use their resources to address the intent of the Legislature and the goals set forth in section one-a,
article one of this chapter. The compacts shall contain the
following:
(1) A step-by-step process to accomplish the intent of the
Legislature and the goals set forth in section one-a, article one
of this chapter as organized by the Commission and Council. The
step-by-step process shall be delineated by objectives and shall
set forth a time line for achieving the objectives which shall,
where applicable, include benchmarks to measure institutional
progress as defined in subsection (e) of this section.
(2) A determination of the mission of the institution which
specifically addresses changes, as applicable, in the areas of
research, graduate education, baccalaureate education, revised
admission requirements, community and technical colleges and such
other areas as the Commission or Council determines appropriate.
In the determination of mission, the institutions and the
Commission or Council shall consider the report completed by the
national center for higher education management systems pursuant to
the legislative study as provided in section seven, article three
of this chapter;
(3) A plan which is calculated to make any changes in
institutional mission and structure within a six-year period;
(4) A statement of the geographic areas of responsibility, where applicable, for each goal to be accomplished as provided in
subsection (d) of this section;
(5) A detailed statement of how the compact is aligned with
and will be implemented in conjunction with the master plan of the
institution;
(6) Such other items, requirements or initiatives, required by
the Commission or Council, designed to accomplish the intent of the
Legislature and the goals set forth in section one-a, article one
of this chapter or other public policy goals established by the
Commission or Council.
(b) Each institutional compact shall be updated annually and
shall follow the same general guidelines contained in subsection
(a) of this section.
(c) Development and updating of the institutional compacts is
subject to the following:
(1) The ultimate responsibility for developing and updating
the institutional compacts at the institutional level resides with
the institutional board of advisors or the board of governors, as
appropriate;
(2) The ultimate responsibility for developing and adopting
the final version of the state college and university institutional
compacts resides with the Commission. The and the ultimate
responsibility for developing and adopting the final version of the community and technical college institutional compacts resides with
the Council;
(3) Each institution shall submit its compact to the
Commission or Council annually by the fifteenth day of November;
(4) The Commission and Council shall review each compact of
the institutions under their respective jurisdictions and either
adopt the compact or return it with specific comments for change or
improvement. The Commission and Council, as appropriate, shall
continue this process as long as each considers advisable;
(5) By the first day of May annually, if the institutional
compact of any institution as presented by that institution is not
adopted by the Commission or Council, then the Commission or
Council is empowered and directed to develop and adopt the
institutional compact for the institution and the institution is
bound by the compact so adopted; and
(6) As far as practicable, the Commission and Council each
shall establish uniform processes and forms for the development and
submission of the institutional compacts by the institutions under
their respective jurisdictions. As a part of this function, the
Commission and Council shall organize the statements of legislative
intent and goals contained in section one-a, article one of this
chapter in a manner that facilitates the purposes of this
subdivision and the purposes of this section.
(d) Assignment of geographic areas of responsibility. --
(1) The Commission and Council shall assign geographic areas
of responsibility to the state institutions of higher education
under their respective jurisdictions as its jurisdiction, except
for the state institutions of higher education known as Marshall
University and West Virginia University. For institutions other
than the state institutions of higher education known as Marshall
University and West Virginia University, the geographic areas of
responsibility are made a part of their institutional compacts to
ensure that all areas of the state are provided necessary programs
and services to achieve the public policy agenda.
(2) Pursuant to the provisions of section four, article
three-c of this chapter, the Council shall assign geographic areas
of responsibility to the state institutions of higher education
under its jurisdiction, including the administratively linked
institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and
Technical College at West Virginia University Institute of
Technology and the regional campus known as West Virginia
University at Parkersburg.
(3) The geographic areas of responsibility for the state
institutions of higher education known as Marshall University and
West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts
shall include measures of programs and services by geographic area
throughout the assigned geographic area of responsibility.
(e) The compacts shall contain benchmarks used to determine
progress toward meeting the goals established in the compacts. The
benchmarks shall meet the following criteria:
(1) They shall be as objective as possible;
(2) They shall be directly linked to the goals in the
compacts;
(3) They shall be measured by the indicators described in
subsection (f) of this section; and
(4) Where applicable, they shall be used to measure progress
in geographic areas of responsibility.
(f) The Commission and Council each shall establish by
legislative rule indicators which measure the degree to which the
goals and objectives set forth in section one-a, article one of
this chapter are being addressed and met by the institutions under
their respective jurisdictions. The benchmarks established in
subsection (e) of this section shall be measured by the indicators.
(1) The Legislature finds that an emergency exists; therefore,
not later than the first day of October, two thousand four, the
Council shall file as an emergency rule a legislative rule
pertaining to benchmarks and indicators in accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
The rule rules pertaining to benchmarks and indicators in effect
for the Commission at the time of and the Council on the effective
date of this section remains remain in effect for the institutions
under its jurisdiction their respective jurisdictions.
(2) The legislative rules shall set forth at the least the
following as pertains to all state institutions of higher
education:
(A) The indicators used to measure the degree to which the
goals and objectives are being met;
(B) Uniform definitions for the various data elements to be
used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to:
(i) Provide measurable evidence that the pursuits of the
institution are targeting the educational needs of the citizens of
the state and the components of the compacts and master plans;
(ii) Delineate the goals and benchmarks for an institution so
that the Commission, or Council can precisely measure the degree to
which progress is being made toward achieving the goals for
post-secondary education provided in section one-a, article one of
this chapter; and
(iii) Distinctly identify specific goals within the master plan or compact of an institution that are not being met or toward
which sufficient progress is not being made.
(3) In addition to any other requirement, the legislative rule
established by the Council shall set forth at the least the
following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify:
(i) The degree to which progress is being made by institutions
toward meeting the goals for post-secondary education and the
essential conditions provided in section three, article three-c of
this chapter;
(ii) Information and data necessary to be considered by the
Council in making the determination required by section three,
article two-c of this chapter;
(iii) The degree to which progress is being made in the areas
considered by the Council for the purpose of making the
determination required by section three, article two-c of this
chapter; and
(B) Sufficient detail within the benchmarks and indicators to
provide clear evidence to support an objective determination by the
Council that an institution's progress toward achieving the goals
for post-secondary education and the essential conditions is so
deficient that implementation of the provisions of section four,
article two-c of this chapter is warranted and necessary.
(g) The Commission or the Council, as appropriate, shall
approve the master plans developed by the boards of governors and
the institutional boards of advisors pursuant to section four,
article two-a of this chapter or section one, article six of this
chapter, as appropriate.
§18B-1A-6. Graduate education.
(a) Intent. -- It is the intent of the Legislature to address
the need for high quality graduate education programs to be
available throughout the state.
(b) Findings. -- The Legislature makes the following findings:
(1) Since West Virginia ranks below its competitor states in
graduate degree production, particularly in the areas that are
important to the state's competitive position in the new economy of
the twenty-first century, there is a considerable need for greater
access to graduate education, especially at the master's degree
level;
(2) There is a significant disparity in access to part-time
graduate degree programs among the different regions of the state
and part-time graduate enrollments are heavily concentrated in the
counties immediately surrounding Marshall University and West
Virginia University;
(3) There is a particular need for increased access to
graduate programs linked directly to the revitalization of the regional economies of the state; and
(4) There is a particular need for improved quality and
accessibility of preservice and in-service programs for teachers in
subject matter fields.
(c) In order to meet the need for graduate education, the
Commission shall be is responsible for accomplishing the following:
(1) Ensuring that West Virginia University and Marshall
University expand assist in the expansion of access to master's
degree programs throughout West Virginia. with These institutions
shall place a strong emphasis on collaboration with the
baccalaureate colleges and community and technical colleges in each
region when funds are available;
(2) Ensuring that any institution providing a master's degree
program under the provisions of this section provides a meaningful,
coherent program by offering courses in such a way that students,
including place-bound adults, have ample opportunity to complete a
degree in a reasonable period of time;
(3) Focusing on providing courses that enhance the
professional skills of teachers in their subject areas; and
(4) Ensuring that programs are offered in the most
cost-effective manner to expand access throughout the region and
the state; and
(5) Determining the graduate program needs of each region.
(d) Bluefield State College, Concord College University,
Fairmont State College University, Glenville State College,
Shepherd College University, West Liberty State College and West
Virginia State College University shall meet the need for graduate
education in their regions by following the procedures outlined
below pursuant to this subsection and subsection (c) of this
section.
(1) If an institution's proposal to offer a master's degree
receives the approval of the Commission, that master's degree may
be offered solely by the institution.
(2) If an institution does not receive the approval of the
Commission for a proposal to offer a master's degree, that
institution may broker or collaborate with another higher education
institution to develop a revised proposal for offering that
brokered or collaborative master's degree.
(1) The institutions shall develop as graduate centers for
their regions to broker access to graduate programs by contracting
with accredited colleges and universities in and out of the state.
These programs shall be related directly to each region's education
and economic needs.
(2) The institutions may begin collaborative programs with
other institutions leading to the granting of master's degrees in
selected areas that are demonstrated to be related directly to the needs of their regions and that draw on faculty strengths. An
institution may continue to offer collaborative programs aimed at
meeting the documented needs with the approval of the Commission
or, if a sustained need still exists, the institution may move to
the next level.
(3) If the graduate education needs of the region have not
been met through brokering and collaborative programs, the
institution may explore the option of beginning its own
graduate-level program leading to the granting of a master's
degree. The institution may begin its own master's degree program
if it can meet the following conditions as determined by the
Commission:
(A) Demonstrate that the institution has successfully
completed each of the steps required before exploring development
of its own master's degree program;
(B) Provide evidence based on experience gained in the
brokering and collaborative arrangements that a sustained demand
exists for the program;
(C) Demonstrate that the baccalaureate institution has the
capacity to provide the program;
(D) Demonstrate that the core mission of the baccalaureate
institution will not be impaired by offering the graduate program;
(E) Provide evidence that the graduate program has a reasonable expectation of being accredited;
(F) Demonstrate that the need documented in subdivision (B) of
this subsection is not currently being met by any other state
institution of higher education; and
(G) The Commission may designate one of the institutions
listed in subsection (d) of this section to develop and implement
no more than four of its own masters level programs as a pilot
project: Provided, That the selected institution shall move toward
and achieve regional accreditation of the master's program within
a reasonable time as determined by the Commission. The institution
shall be selected based on the following:
(i) Sufficient credentialed faculty to offer quality programs
in the areas selected;
(ii) Sufficient unmet demand for the programs; and
(iii) Sustainable unmet demand based on generally accepted
projections for population growth in the region served by the
institution.
The programs authorized by this clause may not be restricted
by the provisions of subdivisions (1), (2) and (3) of this
subsection nor by the provisions of subsection (e) of this section.
(e) There is an urgent need for master's degree programs for
teachers in disciplines or subject areas, such as mathematics,
science, history, literature, foreign languages and the arts. Currently, master's-level courses in education that are offered in
the regions served by the state universities are primarily in areas
such as guidance and counseling, administration, special education
and other disciplines unrelated to teaching in subject areas. If
this need is not being met in a region through the procedure
established in subsection (d) of this section, then the graduate
center in that region may plan a master's degree program in
education focused on teaching in subject area fields in which the
demand is not being met. No institution may begin a graduate
program under the provisions of this section until the program has
been reviewed and approved by the Commission. The Commission shall
approve only those programs, as authorized by this subsection, that
emphasize serving the needs of teachers and schools in the
colleges' immediate regions. In determining whether a program
should be approved, the Commission also shall rely upon the
recommendations of the statewide task force on teacher quality
provided for in section eight, article fourteen of this chapter.
(f) The Commission shall review all graduate programs being
offered under the provisions of this section and, using the
criteria established for program startup in subsection (d) of this
section, determine which programs should be discontinued.
(g) At least annually, the governing boards shall evaluate
graduate programs developed pursuant to the provisions of this section and report to the Commission on the following:
(1) The number of programs being offered and the courses
offered within each program;
(2) The disciplines in which programs are being offered;
(3) The locations and times at which courses are offered;
(4) The number of students enrolled in the program; and
(5) The number of students who have obtained master's degrees
through each program.
The governing boards shall provide the Commission with any
additional information the Commission requests in order to make a
determination on the viability of a program.
(h) In developing any graduate program under the provisions of
this section, institutions shall consider delivering courses at
times and places convenient to adult students who are employed full
time. Institutions shall place an emphasis on extended degree
programs, distance learning and off-campus centers which utilize
the cost-effective nature of extending existing university capacity
to serve the state rather than duplicating the core university
capacity and incurring the increased cost of developing master's
degree programs at other institutions throughout the state.
(i) Brokering institutions shall invite proposals from other
public institutions of higher education for service provision prior
to contracting with other institutions: Provided, That if institutions propose providing graduate programs in service areas
other than in their responsibility district, the institution
seeking to establish a program shall work through the district's
lead institution in providing those services.
(j) In addition to the approval required by the Commission,
authorization for any institution to offer a master's degree
program under the provisions of this section is subject to the
formal approval processes established by the governing boards.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of higher education policy
Commission.
(a) The primary responsibility of the Commission is to
develop, establish and implement policy that will achieve the goals
and objectives found in section one-a, article one of this chapter.
The Commission shall exercise its authority and carry out its
responsibilities in a manner that is consistent and not in conflict
with the powers and duties assigned by law to the West Virginia
Council for community and technical college education and the
powers and duties assigned to the governing boards of Marshall
University and West Virginia University, respectively. To that
end, the Commission has the following powers and duties relating to
the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article one-a of this chapter to address
major challenges facing the state, including, but not limited to,
the goals and objectives found in section one-a, article one of
this chapter and including specifically those goals and objectives
pertaining to the compacts created pursuant to section two, article
one-a of this chapter and to develop and implement the master plan
described in section nine of this article for the purpose of
accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly
with the Council of a financing policy for higher education in West
Virginia. The policy shall meet the following criteria:
(A) Provide an adequate level of education and general funding
for institutions pursuant to section five, article one-a of this
chapter;
(B) Serve to maintain institutional assets, including, but not
limited to, human and physical resources and deferred maintenance;
(C) Invest and provide incentives for achieving the priority
goals in the public policy agenda, including, but not limited to,
those found in section one-a, article one of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen
capacity for support of community and technical college education
established by the West Virginia Council for Community and
Technical College Education pursuant to the provisions of section six, article two-b of this chapter;
(3) In collaboration with the Council, create a policy
leadership structure capable of the following actions:
(A) Developing, building public consensus around and
sustaining attention to a long-range public policy agenda. In
developing the agenda, the Commission and Council shall seek input
from the Legislature and the Governor and specifically from the
State Board of Education and local school districts in order to
create the necessary linkages to assure smooth, effective and
seamless movement of students through the public education and
post-secondary education systems and to ensure that the needs of
public school courses and programs can be fulfilled by the
graduates produced and the programs offered;
(B) Ensuring that the governing boards carry out their duty
effectively to govern the individual institutions of higher
education; and
(C) Holding the higher education institutions and the higher
education systems as a whole accountable for accomplishing their
missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact;
(5) Review and adopt the annual updates of the institutional
compacts;
(6) Serve as the accountability point to:
(A) The Governor for implementation of the public policy
agenda; and
(B) The Legislature by maintaining a close working
relationship with the legislative leadership and the Legislative
Oversight Commission on Education Accountability;
(7) Jointly with the Council, promulgate legislative rules
pursuant to article three-a, chapter twenty-nine-a of this code to
fulfill the purposes of section five, article one-a of this
chapter;
(8) Establish and implement a peer group for each institution
as described in section three, article one-a of this chapter;
(9) Establish and implement the benchmarks and performance
indicators necessary to measure institutional achievement towards
state policy priorities and institutional missions pursuant to
section two, article one-a of this chapter;
(10) Annually report to the Legislature and to the Legislative
Oversight Commission on Education Accountability during the January
interim meetings on a date and at a time and location to be
determined by the President of the Senate and the Speaker of the
House of Delegates. The report shall address at least the
following:
(A) The performance of its system of higher education during
the previous fiscal year, including, but not limited to, progress in meeting goals stated in the compacts and progress of the
institutions and the higher education system as a whole in meeting
the goals and objectives set forth in section one-a, article one of
this chapter;
(B) An analysis of enrollment data collected pursuant to
section one, article ten of this chapter and recommendations for
any changes necessary to assure access to high-quality, high-demand
education programs for West Virginia residents;
(C) The priorities established for capital investment needs
pursuant to subdivision (11) of this subsection and the
justification for such priority;
(D) Recommendations of the Commission for statutory changes
needed to further the goals and objectives set forth in section
one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for
capital investments and for determining priorities for these
investments for consideration by the Governor and the Legislature
as part of the appropriation request process. It is the
responsibility of the Commission to assure a fair distribution of
funds for capital projects between the Commission and the Council.
To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the Council
for capital investment for the institutions under the Council's jurisdiction pursuant to subsection (b), section six, article two-b
of this chapter;
(B) Place the ranked list of projects on the agenda for action
within sixty days of the date on which the list was received;
(C) Select a minimum of three projects from the list submitted
by the Council to be included on the ranked list established by the
Commission. At least one of the three projects selected must come
from the top two priorities established by the Council.
(12) Maintain guidelines for institutions to follow concerning
extensive capital projects project management except the governing
boards of Marshall University and West Virginia University are not
subject to the provisions of this subdivision as it relates to the
state institutions of higher education known as Marshall University
and West Virginia University. The guidelines shall provide a
process for developing capital projects, including, but not limited
to, the notification by an institution to the Commission of any
proposed capital project which has the potential to exceed one
million dollars in cost. Such a project may not be pursued by an
institution without the approval of the Commission. An institution
may not participate directly or indirectly with any public or
private entity in any capital project which has the potential to
exceed one million dollars in cost;
(13) Acquire legal services as are considered necessary, including representation of the Commission, its institutions,
employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary.
The counsel may be employed either on a salaried basis or on a
reasonable fee basis. In addition, the Commission may, but is not
required to, call upon the Attorney General for legal assistance
and representation as provided by law;
(14) Employ a Chancellor for Higher Education pursuant to
section five of this article;
(15) Employ other staff as necessary and appropriate to carry
out the duties and responsibilities of the Commission and the
Council, in accordance with the provisions of article four of this
chapter;
(16) Provide suitable offices in Charleston for the
chancellor, vice chancellors and other staff;
(17) Advise and consent in the appointment of the presidents
of the institutions of higher education under its jurisdiction
pursuant to section six of this article. The role of the
Commission in approving an institutional president is to assure
through personal interview that the person selected understands and
is committed to achieving the goals and objectives as set forth in
the institutional compact and in section one-a, article one of this
chapter;
(18) Approve the total compensation package from all sources
for presidents of institutions under its jurisdiction, as proposed
by the governing boards. The governing boards must obtain approval
from the Commission of the total compensation package both when
institutional presidents are employed initially and afterward when
any change is made in the amount of the total compensation package;
(19) Establish and implement the policy of the state to assure
that parents and students have sufficient information at the
earliest possible age on which to base academic decisions about
what is required for students to be successful in college, other
post-secondary education and careers related, as far as possible,
to results from current assessment tools in use in West Virginia;
(20) Approve and implement a uniform standard jointly with the
Council to determine which students shall be placed in remedial or
developmental courses. The standard shall be aligned with college
admission tests and assessment tools used in West Virginia and
shall be applied uniformly by the governing boards throughout the
public higher education system. The chancellors shall develop a
clear, concise explanation of the standard which they shall
communicate to the State Board of Education and the State
Superintendent of schools;
(21) Review and approve or disapprove capital projects as
described in subdivision (11) of this subsection;
(22) Jointly with the Council, develop and implement an
oversight plan to manage systemwide technology such as the
following:
(A) Expanding distance learning and technology networks to
enhance teaching and learning, promote access to quality
educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional
students, to provide services to business and industry and increase
the management capabilities of the higher education system.
(C) Notwithstanding any other provision of law or this code to
the contrary, the Council, Commission and state institutions of
higher educations are not subject to the jurisdiction of the Chief
Technology Officer for any purpose.
(23) Establish and implement policies and procedures to ensure
that students may transfer and apply toward the requirements for a
bachelor's degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state community and
technical college with as few requirements to repeat courses or to
incur additional costs as is consistent with sound academic policy;
(24) Establish and implement policies and procedures to ensure
that students may transfer and apply toward the requirements for a
degree the maximum number of credits earned at any regionally
accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional
costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure
that students may transfer and apply toward the requirements for a
master's degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state higher education
institution with as few requirements to repeat courses or to incur
additional costs as is consistent with sound academic policy;
(26) Establish and implement policies and programs, in
cooperation with the Council and the institutions of higher
education, through which students who have gained knowledge and
skills through employment, participation in education and training
at vocational schools or other education institutions, or
internet-based education programs, may demonstrate by
competency-based assessment that they have the necessary knowledge
and skills to be granted academic credit or advanced placement
standing toward the requirements of an associate degree or a
bachelor's degree at a state institution of higher education;
(27) Seek out and attend regional, national and international
meetings and forums on education and workforce development-related
topics, as in the Commission's discretion is critical for the
performance of their duties as members, for the purpose of keeping
abreast of education trends and policies to aid it in developing the policies for this state to meet the established education goals
and objectives pursuant to section one-a, article one of this
chapter;
(28) Develop, establish and implement guidelines a rule for
higher education governing boards and institutions to follow when
considering capital projects. The guidelines shall include, but
not be limited to, the following
(A) That the governing boards and institutions not approve or
promote projects that give competitive advantage to new private
sector projects over existing West Virginia businesses, unless the
Commission determines such private sector projects are in the best
interest of the students, the institution and the community to be
served; and
(B) That assure that the governing boards and institutions do
not approve or promote capital projects involving private sector
businesses which would have the effect of reducing property taxes
on existing properties or avoiding, in whole or in part, the full
amount of taxes which would be due on newly developed or future
properties;
(29) Consider and submit to the appropriate agencies of the
executive and legislative branches of state government a budget
that reflects recommended appropriations from the Commission and
the institutions under its jurisdiction. The Commission shall submit as part of its budget proposal the separate recommended
appropriations it received from the Council, both for the Council
and the institutions under the Council's jurisdiction. The
Commission annually shall submit the proposed institutional
allocations based on each institution's progress toward meeting the
goals of its institutional compact;
(30) The Commission has the authority to assess institutions
under its jurisdiction, including the state institutions of higher
education known as Marshall University and West Virginia
University, for the payment of expenses of the Commission or for
the funding of statewide higher education services, obligations or
initiatives related to the goals set forth for the provision of
public higher education in the state;
(31) Promulgate rules allocating reimbursement of
appropriations, if made available by the Legislature, to
institutions of higher education for qualifying noncapital
expenditures incurred in the provision of services to students with
physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this
code requires appointments from the State College System Board of
Directors or the University of West Virginia System Board of
Trustees which were abolished effective the thirtieth day of June,
two thousand, except in those cases where the required appointment has a specific and direct connection to the provision of community
and technical college education, the appointment shall be made by
the Council. Notwithstanding any provisions of this code to the
contrary, the Commission or the Council may appoint one of its own
members or any other citizen of the state as its designee. The
Commission and Council shall appoint the total number of persons in
the aggregate required to be appointed by these previous governing
boards;
(33) Pursuant to the provisions of article three-a, chapter
twenty-nine-a of this code and section six, article one of this
chapter, promulgate rules as necessary or expedient to fulfill the
purposes of this chapter. The Commission and the Council shall
promulgate a uniform joint legislative rule for the purpose of
standardizing, as much as possible, the administration of personnel
matters among the institutions of higher education;
(34) Determine when a joint rule among the governing boards of
the institutions under its jurisdiction is necessary or required by
law and, in those instances, in consultation with the governing
boards of all the institutions under its jurisdiction, promulgate
the joint rule;
(35) In consultation with the governing boards of Marshall
University and West Virginia University, implement a policy jointly
with the Council whereby course credit earned at a community and technical college transfers for program credit at any other state
institution of higher education and is not limited to fulfilling a
general education requirement; and
(36) Promulgate a joint rule with the Council establishing
tuition and fee policy for all institutions of higher education,
other than state institutions of higher education known as Marshall
University and West Virginia University which are subject to the
provisions of section one, article ten of this chapter. The rule
shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the Commission and Council consider
appropriate; and
(37) Implement general disease awareness initiatives to
educate parents and students, particularly dormitory residents,
about meningococcal meningitis; the potentially life-threatening
dangers of contracting the infection; behaviors and activities that
can increase risks; measures that can be taken to prevent contact
or infection; and potential benefits of vaccination. The
Commission shall encourage institutions that provide medical care
to students to provide access to the vaccine for those who wish to receive it.
(b) In addition to the powers and duties listed in subsection
(a) of this section, the Commission has the following general
powers and duties related to its role in developing, articulating
and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership including a distinct and
visible role in setting the state's policy agenda and in serving as
an agent of change;
(2) Policy analysis and research focused on issues affecting
the system as a whole or a geographical region thereof;
(3) Development and implementation of institutional mission
definitions including use of incentive funds to influence
institutional behavior in ways that are consistent with public
priorities;
(4) Academic program review and approval for institutions
under its jurisdiction, including the use of institutional missions
as a template to judge the appropriateness of both new and existing
programs and the authority to implement needed changes. The
Commission's authority to review and approve academic programs for
either the state institution of higher education known as Marshall
University or West Virginia University is limited to programs that
are proposed to be offered at a new location not presently served
by that institution;
(5) Development of budget and allocation of resources,
including reviewing and approving institutional operating budgets
and Distributing Distribution of funds appropriated to the
Commission, including incentive and performance-based funding;
(6) Administration of state and federal student aid programs
under the supervision of the vice chancellor for administration,
including promulgation of any rules necessary to administer those
programs;
(7) Serving as the agent to receive and disburse public funds
when a governmental entity requires designation of a statewide
higher education agency for this purpose;
(8) Development, establishment and implementation of
information, assessment and accountability systems, including
maintenance of statewide data systems that facilitate long-term
planning and accurate measurement of strategic outcomes and
performance indicators;
(9) Jointly with the Council, developing, establishing and
implementing policies for licensing and oversight for both public
and private degree-granting and nondegree-granting institutions
that provide post-secondary education courses or programs in the
state pursuant to the findings and policy recommendations to be
determined as set forth in required by section eleven of this
article;
(10) Development, implementation and oversight of statewide
and region-wide projects and initiatives related to providing
post-secondary education at the baccalaureate level and above such
as those using funds from federal categorical programs or those
using incentive and performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties
of the Commission particularly in the areas of research, data
collection and analysis, planning, policy analysis, program review
and approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided for in
subsections (a) and (b) of this section and any other powers and
duties as may be assigned to it by law, the Commission has such
other powers and duties as may be necessary or expedient to
accomplish the purposes of this article.
(d) The Commission is authorized to withdraw specific powers
of any governing board of an institution under its jurisdiction for
a period not to exceed two years, if the Commission makes a
determination that:
(1) The governing board has failed for two consecutive years
to develop an institutional compact as required in article one of
this chapter;
(2) The Commission has received information, substantiated by
independent audit, of significant mismanagement or failure to carry out the powers and duties of the board of governors according to
state law; or
(3) Other circumstances which, in the view of the Commission,
severely limit the capacity of the board of governors to carry out
its duties and responsibilities.
(4) The period of withdrawal of specific powers may not exceed
two years during which time the Commission is authorized to take
steps necessary to reestablish the conditions for restoration of
sound, stable and responsible institutional governance.
§18B-1B-5. Employment of Chancellor for Higher Education; office;
powers and duties generally; employment of vice chancellors.
(a) The Commission, created pursuant to section one of this
article, shall employ a Chancellor for Higher Education who is the
Chief Executive Officer of the Commission and who serves at its
will and pleasure.
(b) The Commission shall set the qualifications for the
position of Chancellor and shall conduct a thorough nationwide
search for qualified candidates. A qualified candidate is one who
meets at least the following criteria:
(1) Possesses an excellent academic and administrative
background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within
a system of higher education while employed as chancellor.
(c) The Commission shall conduct written performance
evaluations of the Chancellor annually and may offer the Chancellor
a contract not to exceed three years. At the end of each contract
period, the Commission shall review the evaluations and make a
determination by vote of its members on continuing employment and
compensation level.
(d) When filling a vacancy in the position of Chancellor, the
Commission shall enter into an initial employment contract for one
year with the candidate selected. At the end of the initial
contract period, and each contract period thereafter, the
Commission shall review the evaluations and make a determination by
vote of its members on continuing employment and compensation level
for the Chancellor.
(e) The chancellor shall be compensated on a basis in excess
of, but not to exceed twenty percent greater than, the base salary
of any president of a state institution of higher education or the
administrative head of a governing board The Commission sets the
Chancellor's salary. The salary may not exceed by more than twenty
percent the average annual salary of chief executive officers of state systems of higher education in the states that comprise the
membership of the Southern Regional Education Board.
(f) The Commission may employ a Vice Chancellor for Health
Sciences who serves at the will and pleasure of the Commission.
The Vice Chancellor for Health Sciences shall coordinate the West
Virginia University School of Medicine, the Marshall University
School of Medicine and the West Virginia School of Osteopathic
Medicine and also shall provide assistance to the governing boards
on matters related to medical education and health sciences. The
Vice Chancellor for Health Sciences shall perform all duties
assigned by the Chancellor, the Commission and state law. In the
case of a vacancy in the office of Vice Chancellor of Health
Sciences, the duties assigned to this Office by law are the
responsibility of the Chancellor or a designee.
(g) The Commission shall employ a Vice Chancellor for
Administration pursuant to section two, article four of this
chapter.
(h) The Commission may employ a Vice Chancellor for State
Colleges who serves at the will and pleasure of the Commission. It
is the duty and responsibility of the Vice Chancellor for State
Colleges to:
(1) Provide assistance to the Commission, the Chancellor and
the state colleges on matters related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the
institutional presidents and institutional boards of governors of
each state college;
(3) Serve as an advocate and spokesperson for the state
colleges to represent them and to make their interests, views and
issues known to the Chancellor, the Commission and governmental
agencies;
(4) Perform all duties assigned by the Chancellor, the
Commission and state law.
In addition, the Vice Chancellor for State Colleges has the
responsibility and the duty to provide staff assistance to the
institutional presidents and governing boards to the extent
practicable.
(i) On behalf of the Commission, the Chancellor may enter into
agreements with any state agency or political subdivision of the
state, any state higher education institution or any other person
or entity to enlist staff assistance to implement the powers and
duties assigned by the Commission or by state law.
(j) The Chancellor is responsible for the daily operations of
the Commission and has the following responsibilities relating to
the Commission and the institutions under its jurisdiction:
(1) To carry out policy and program directives of the Commission;
(2) To develop and submit annual reports on the implementation
plan to achieve the goals and objectives set forth in section
one-a, article one of this chapter and in the institutional
compacts;
(3) To prepare and submit to the Commission for its approval
the proposed budget of the Commission including the offices of the
Chancellor and the vice chancellors;
(4) To assist the governing boards in developing rules,
subject to the provisions of section six, article one of this
chapter. Nothing in this chapter requires the rules of the
governing boards to be filed pursuant to the rule-making procedures
provided in article three-a, chapter twenty-nine-a of this code.
The chancellor is Commission and the Council, either separately or
jointly as appropriate, are responsible for ensuring that any
policy which is required to be uniform across the institutions is
applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned
by the Commission or by state law.
(k) The Chancellor shall be reimbursed for all actual and
necessary expenses incurred in the performance of all assigned
duties and responsibilities.
(l) The Chancellor, with the Commission, advises the Legislature on matters of higher education in West Virginia. The
Chancellor shall work closely with the Legislative Oversight
Commission on Education Accountability and with the elected
leadership of the state to ensure that they are fully informed
about higher education issues and that the Commission fully
understands the goals for higher education that the Legislature has
established by law.
(m) The Chancellor may design and develop for consideration by
the Commission new statewide or regional initiatives in accordance
with the goals set forth in section one-a, article one of this
chapter and the public policy agenda articulated by the Commission.
In those instances where the initiatives to be proposed have a
direct and specific impact or connection to community and technical
college education as well as to baccalaureate and graduate
education, the Chancellor for Higher Education and the Chancellor
for Community and Technical College Education shall design and
develop the initiatives jointly for consideration by the Commission
and the Council.
(n) The Chancellor shall work closely with members of the
State Board of Education and with the State Superintendent of
Schools to assure that the following goals are met:
(1) Development and implementation of a seamless
kindergarten-through-college system of education; and
(2) Appropriate coordination of missions and programs. To
further the goals of cooperation and coordination between the
Commission and the State Board of Education, the Chancellor serves
as an ex officio, nonvoting member of the State Board of Education.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of
presidents of the public state institutions of higher education
shall be made as follows:
(1) Subject to the approval of the Commission, the governing
board of the institution appoints a president for Bluefield State
College, Concord college University, Fairmont State college
University, Glenville State College, Marshall University, Shepherd
college University, West Liberty State College, West Virginia
School of Osteopathic Medicine, West Virginia State college
University and West Virginia University.
(2) Subject to the approval of the Council and to the
provisions of article three-c of this chapter, the Governing Board
of West Virginia University appoints the President of the regional
campus known as West Virginia University at Parkersburg. When
selecting candidates for consideration to fill the office of
president, the Governing Board shall use the search and screening
process provided for in section one, article six of this chapter.
Subject to the approval of the Commission, the Governing Board of West Virginia University appoints the President of the regional
campus known as West Virginia University Institute of Technology.
The president of each regional campus serves at the will and
pleasure of the appointing governing board.
(3) Subject to the approval of the Council, the governing
board of the community and technical college appoints a president
for Eastern West Virginia Community and Technical College, Southern
West Virginia Community and Technical College and West Virginia
Northern Community and Technical College.
(4) Subject to the approval of the Council, the governing
board of the sponsoring institution appoints a president for each
administratively linked community and technical colleges college
which shares a physical campus location with the sponsoring
institution, including Fairmont State Community and Technical
College, Marshall Community and Technical College, the Community
and Technical College at West Virginia University Institute of
Technology and West Virginia State Community and Technical College.
(5) Subject to the approval of the Council, the governing
board of the community and technical college appoints a president
for each administratively linked community and technical college
which does not share a physical campus location with the sponsoring
institution, including New River Community and Technical College
and the Community and Technical College of Shepherd.
Subject to the approval of the Council, the governing board of
the sponsoring institution appoints a president for each of these
two community and technical colleges until the institution gains
independent accreditation.
(b) Other appointments. -- Effective the first day of July,
two thousand five, the The institutional president shall appoint
appoints a provost to be the administrative head of the Potomac
campus of West Virginia University.
(c) Evaluation of presidents. -- The appointing governing
board shall conduct written performance evaluations of each
institution's president, including the presidents of
administratively linked community and technical colleges.
Evaluations shall be done in every fourth year of employment as
president, recognizing unique characteristics of the institution
and utilizing institutional personnel, institutional boards of
advisors as appropriate, staff of the appropriate governing board
and persons knowledgeable in higher education matters who are not
otherwise employed by a governing board. A part of the evaluation
shall be a determination of the success of the institution in
meeting the requirements of its institutional compact.
§18B-1B-13. Study of issues affecting employees in public higher
education.
(a) In consultation with the Council, the governing boards, the State Advisory Council of Faculty established pursuant to
section two, article six of this chapter and the State Advisory
Council of Classified Employees established pursuant to section
five, article six of this chapter, the Commission shall conduct a
study relating to issues affecting employees in public higher
education.
(b) The study includes, but is not limited to, the following:
(1) Reviewing statutes, rules, guidelines, interpretations and
other statements of policy;
(2) Surveying the capacity, professional training and
practices of human resources staff by institution, including the
number of staff employed in each institutional human resources
office, their job titles and responsibilities;
(3) Evaluating the strengths and weaknesses of the statewide
classification and compensation system and examining alternatives;
(4) Reviewing job titles and responsibilities to determine if
certain families of jobs should be classified or nonclassified;
(5) Evaluating and recommending best practices and methods to
establish salary rates for faculty, classified employees,
nonclassified employees and administrators, including:
(A) Developing measurable indicators of "merit" and
"performance" if these terms are to be used in a system for
determining benefits;
(B) Developing reliable instruments of performance evaluation
for all classes of employees; and
(C) Exploring the feasibility of authorizing employee bonuses
under a merit or performance-based system;
(6) Determining the most effective and efficient method to
train administrators who perform employee evaluations and assuring
that they use these instruments appropriately;
(7) Exploring justifications for maintaining or removing the
internal preference for hiring, promoting and transferring
classified employees pursuant to article seven of this chapter;
(8) Developing recommendations for a fair and rational policy
covering reductions in force;
(9) Identifying unnecessary state-level paperwork requirements
related to personnel and recommending methods to eliminate them
while maintaining strict fiscal accountability;
(10) Evaluating the strengths and weaknesses of statewide
tenure and promotion policies for faculty and examining
alternatives;
(11) Evaluating the feasibility of implementing differential
salary rates based on cost of living or other relevant factors;
(12) Determining whether employees whose salaries are derived
from funds other than state appropriations should be subject to the
provisions of article seven of this chapter and how such employees should be treated in any policy on reductions in force; and
(13) Determining the true costs or benefits as well as the
advantages and disadvantages that may accrue as a result of
decisions to outsource certain institutional functions. In order
to perform a cost/benefit analysis, the Commission must first
develop an accurate database of institutional practices including
the number of positions being outsourced or filled by temporary
employees and the true amount of cost savings, if any.
(c) The Commission shall report to the Legislative Oversight
Commission on Education Accountability by the first day of October,
two thousand five, and every six months thereafter on the progress
of the study.
(d) The Commission shall complete its work and report its
findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate the recommendations, to the
Legislative Oversight Commission on Education Accountability by the
first day of December, two thousand eight.
(1) In making its recommendations, the Commission shall take
into account the impact of proposed changes on employees and the
communities in which state institutions of higher education are
located; and
(2) The Commission shall include documentation to support any
conclusion or recommendation included as a part of their findings and shall attach estimates of cost or savings to each
recommendation, if that recommendation has a fiscal impact on any
public agency or institution.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-3. Supervision of governing boards; promulgation of rules.
(a) For the transition year beginning on the first day of
July, two thousand and ending on the thirtieth day of June, two
thousand one, the Interim Governing Board is subject to the
supervision of the secretary of education and the arts. Rules
adopted by the governing board are subject to approval by the
secretary of education and the arts.
(b) (a) Effective the first day of July, two thousand one, and
thereafter, the The governing boards are subject to the supervision
of the chancellor is Commission or the Council, as appropriate,
except for the governing boards of Marshall University and West
Virginia University as it relates to the state institutions of
higher education know as Marshall University and West Virginia
University. The Chancellor for Higher Education and the Chancellor
for Community and Technical College Education, under the
supervision of their respective boards, are responsible for the
coordination of policies and purposes of the governing boards and
shall provide for and facilitate sufficient interaction among the
governing boards and between the governing boards and the State Board of Education to meet the goals and objectives provided for in
the compacts and in section one-a, article one of this chapter.
(c) (b) The governing boards and the State Board of Education
shall provide any and all information requested by the chancellor
Commission or the Council in a an appropriate format and in a
timely manner.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and
duties:
(a) Determine, control, supervise and manage the financial,
business and education policies and affairs of the state
institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its
jurisdiction, except the administratively linked community and
technical colleges which retain an institutional board of advisors
shall develop their master plans subject to the provisions of
section one, article six of this chapter.
(1) The ultimate responsibility for developing and updating
the master plans at the institutional level resides with the board
of governors, or board of advisors, as applicable, but the ultimate
responsibility for approving the final version of the institutional
master plans, including periodic updates, resides with the
Commission or Council, as appropriate.
(2) Each master plan shall include, but not be limited to, the
following:
(1) (A) A detailed demonstration of how the master plan will
be used to meet the goals and objectives of the institutional
compact;
(2) (B) A well-developed set of goals outlining missions,
degree offerings, resource requirements, physical plant needs,
personnel needs, enrollment levels and other planning determinates
and projections necessary in such a plan to assure that the needs
of the institution's area of responsibility for a quality system of
higher education are addressed;
(3) (C) Documentation of the involvement of the Commission or
Council, as appropriate, institutional constituency groups,
clientele of the institution and the general public in the
development of all segments of the institutional master plan.
(3) The plan shall be established for periods of not less than
three nor more than six years and shall be revised periodically as
necessary, including the addition or deletion of degree programs
as, in the discretion of the appropriate governing board, may be
necessary;
(c) Prescribe for the institutions under its jurisdiction, in
accordance with its master plan and the compact for each
institution, specific functions and responsibilities to meet the higher education needs of its area of responsibility and to avoid
unnecessary duplication;
(d) Direct the preparation of a budget request for the
institutions under its jurisdiction, such request to relate
directly to missions, goals and projections as found in the
institutional master plans and the institutional compacts;
(e) Consider, revise and submit to the Commission or Council,
as appropriate, a budget request on behalf of the institutions
under its jurisdiction;
(f) Review, at least every five years, all academic programs
offered at the institutions under its jurisdiction. The review
shall address the viability, adequacy and necessity of the programs
in relation to its institutional master plan, the institutional
compact and the education and workforce needs of its responsibility
district. As a part of the review, each governing board shall
require the institutions under its jurisdiction to conduct periodic
studies of its graduates and their employers to determine placement
patterns and the effectiveness of the education experience. Where
appropriate, these studies should coincide with the studies
required of many academic disciplines by their accrediting bodies;
(g) The governing boards shall ensure that the sequence and
availability of academic programs and courses offered by the
institutions under their jurisdiction is such that students have the maximum opportunity to complete programs in the time frame
normally associated with program completion. Each governing board
is responsible to see that the needs of nontraditional college-age
students are appropriately addressed and, to the extent it is
possible for the individual governing board to control, to assure
core course work completed at institutions under its jurisdiction
is transferable to any other state institution of higher education
for credit with the grade earned;
(h) Subject to the provisions of article one-b of this
chapter, the appropriate governing board has the exclusive
authority to approve the teacher education programs offered in the
institution under its control. In order to permit graduates of
teacher education programs to receive a degree from a nationally
accredited program and in order to prevent expensive duplication of
program accreditation, the Commission may select and utilize one
nationally recognized teacher education program accreditation
standard as the appropriate standard for program evaluation;
(i) Utilize faculty, students and classified employees in
institutional-level planning and decisionmaking when those groups
are affected;
(j) Subject to the provisions of federal law and pursuant to
the provisions of article nine of this chapter and to rules adopted
by the Commission and the Council, administer a system for the management of personnel matters, including, but not limited to,
personnel classification, compensation and discipline for employees
at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and
appeals. Notwithstanding any other provision of this code to the
contrary, the procedure established in article six-a, chapter
twenty-nine of this code is the exclusive mechanism for hearing
prospective employee grievances and appeals. In construing the
application of said article to grievances of higher education
employees, the following apply:
(1) "Chief administrator" means the president of a state
institution of higher education as to those employees employed by
the institution and the appropriate chancellor as to those
employees employed by the Commission or Council;
(2) The State Division of Personnel may not be a party to nor
have any authority regarding a grievance initiated by a higher
education employee; and
(3) The provisions of this section supersede and replace the
grievance procedure set out in article twenty-nine, chapter
eighteen of this code for any grievance initiated by a higher
education employee after the first day of July, two thousand one;
(l) Solicit and utilize or expend voluntary support, including
financial contributions and support services, for the institutions under its jurisdiction;
(m) Appoint a president for the institutions under its
jurisdiction subject to the provisions of section six, article
one-b of this chapter;
(n) Conduct written performance evaluations of the president
pursuant to section six, article one-b of this chapter;
(o) Employ all faculty and staff at the institution under its
jurisdiction. Such employees operate under the supervision of the
president, but are employees of the governing board;
(p) Submit to the Commission or Council, as appropriate, no
later than the first day of November of each year an annual report
of the performance of the institution under its jurisdiction during
the previous fiscal year as compared to stated goals in its master
plan and institutional compact;
(q) Enter into contracts or consortium agreements with the
public schools, private schools or private industry to provide
technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the public
institution of higher education or at off-campus locations in the
institution's responsibility district. To accomplish this goal,
the boards are permitted to share resources among the various
groups in the community;
(r) Provide and transfer funding and property to certain corporations pursuant to section ten, article twelve of this
chapter;
(s) Delegate, with prescribed standards and limitations, the
part of its power and control over the business affairs of the
institution to the president in any case where it considers the
delegation necessary and prudent in order to enable the institution
to function in a proper and expeditious manner and to meet the
requirements of its institutional compact. If a governing board
elects to delegate any of its power and control under the
provisions of this subsection, it shall enter such delegation in
the minutes of the meeting when the decision was made and shall
notify the appropriate chancellor Commission or Council, as
appropriate. Any such delegation of power and control may be
rescinded by the appropriate governing board, or the chancellor the
Commission or Council, as appropriate, at any time, in whole or in
part, except that the Commission may not revoke delegations of
authority made by the governing boards of Marshall University or
West Virginia University as they relate to the state institutions
of higher education known as Marshall University and West Virginia
University;
(t) Unless changed by the Commission or the Council, as
appropriate, the governing boards shall continue to abide by
existing rules setting forth standards for acceptance of advanced placement credit for their respective institutions. Individual
departments at institutions of higher education may, upon approval
of the institutional faculty senate, require higher scores on the
advanced placement test than scores designated by the appropriate
governing board when the credit is to be used toward meeting a
requirement of the core curriculum for a major in that department;
(u) Each governing board, or its designee, shall consult,
cooperate and work with the State Treasurer and the State Auditor
to update as necessary and maintain an efficient and cost-effective
system for the financial management and expenditure of special
revenue and appropriated state funds at the institutions under its
jurisdiction that ensures that properly submitted requests for
payment be paid on or before due date but, in any event, within
fifteen days of receipt in the State Auditor's office;
(v) The governing boards in consultation with the appropriate
chancellor and the Secretary of the Department of Administration
shall develop, update as necessary and maintain a plan to
administer a consistent method of conducting personnel
transactions, including, but not limited to, hiring, dismissal,
promotions and transfers at the institutions under their
jurisdiction. Each such personnel transaction shall be accompanied
by the appropriate standardized system or forms which will be
submitted to the respective governing board and the Department of Finance and Administration;
(w) Transfer of funds. --
(1) Notwithstanding any other provision of this code to the
contrary, the governing boards may transfer funds from any account
specifically appropriated for their use to any corresponding line
item in a general revenue account at any agency or institution
under their jurisdiction as long as such transferred funds are used
for the purposes appropriated.
(2) The governing boards may transfer funds from appropriated
special revenue accounts for capital improvements under their
jurisdiction to special revenue accounts at agencies or
institutions under their jurisdiction as long as such transferred
funds are used for the purposes appropriated.
(x) Notwithstanding any other provision of this code to the
contrary, the governing boards may acquire legal services as are
considered necessary, including representation of the governing
boards, their institutions, employees and officers before any court
or administrative body. The counsel may be employed either on a
salaried basis or on a reasonable fee basis. In addition, the
governing boards may, but are not required to, call upon the
Attorney General for legal assistance and representation as
provided by law; and
(y) Each governing board which has under its jurisdiction an administratively linked community and technical college or a
regional campus offering community and technical college education
programs shall create within the administrative structure of its
governing board a subcommittee for community and technical college
education. The subcommittee shall have at least four members, one
of whom is the chairperson of the board of advisors of the
community and technical college or, in the case of the Governing
Board of West Virginia university, both the member representing the
community and technical college and the member representing the
regional campus; and
(z) A governing board may contract and pay for disability
insurance for a class or classes of employees at a state
institution of higher education under its jurisdiction.
§18B-2A-7. Additional powers and duties of governing boards.
(a) A state institution of higher education is granted the
powers, duties and authorities previously granted to the state
institutions of higher education known as Marshall University and
West Virginia University, subject to the following:
(1) The institutional operating budgets of all institutions to
which this section applies have achieved a level of funding
comparable with, but not less than ninety percent of, their
respective peers, as established pursuant to section three, article
one-a of this chapter;
(2) The Commission approves granting the powers, duties and
authorities to that institution; and
(3) The powers, duties and authorities may not be granted to
any institution prior to the first day of July, two thousand
twelve.
(b) The powers, duties and authorities granted pursuant to
this section are those provided in:
(1) Section four-a, article six, chapter five of this code;
(2) Section two, article one, chapter five-g of this code;
(3) Section twelve-b, article one, chapter twelve of this
code;
(4) Sections five, six, seven and eight, article three,
chapter twelve of this code;
(5) Sections three and six, article one of this chapter;
(6) Section two article one-a of this chapter;
(7) Section four, article one-b of this chapter;
(8) Sections three and four, article two-a of this chapter;
(9) Sections two and three, article three of this chapter;
(10) Sections five, five-a, six and seven, article four of
this chapter;
(11) Sections three, four, seven and nine, article five of
this chapter; and
(12) Sections one and six-a, article ten of this chapter.
(c) This section does not apply to any community and technical
college.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-9. Permits required for correspondence, business,
occupational and trade schools; surety bonds and fees;
issuance, renewal and revocation of permit; reports; rules;
penalty and enforcement.
(a) The following words when used in this section have the
meaning hereinafter ascribed to them unless the context clearly
indicates a different meaning:
(1) "Proprietary schools that award specialized associate
degrees" means institutions of higher education; and
(2) "Specialized associate degrees" means degrees awarded by
such institutions pursuant to a program of not fewer than two
academic years.
(b) Nothing in this section qualifies proprietary schools for
additional state moneys not otherwise qualified under other
provisions of this code.
(c) It is unlawful for any person representing a
correspondence, business, occupational or trade school inside or
outside this state, as these are defined by the Council by rule
promulgated in accordance with article three-a, chapter twenty-nine-a of this code, to solicit, sell or offer to sell
courses of instruction to any resident of this state for
consideration or remuneration unless the school first applies for
a permit, or obtains a permit, from the Council in the manner and
on the terms herein prescribed, except this section does not apply
to private organizations which offer only tax return preparation
courses. The rule previously promulgated by the State College
System Board of Directors and transferred to the Council by section
six, article two-b, chapter eighteen-b of this code remains in
effect until rescinded or amended by the Council.
(1) All private training or educational institutions, schools
or academies or other organizations shall apply for a permit from
the Council on forms provided by the Council.
(2) Each initial application shall be accompanied by a
nonrefundable fee of two thousand dollars. The Council also may
assess an additional fee based on any additional expense required
to evaluate the application.
(3) The Council shall make a determination on the initial
permit application within ninety days after receipt of the
application and fee.
(4) An applicant for an initial permit shall show proof at the
time of filing an application that adequate facilities are
available and ready for occupancy and that all instructional equipment, books and supplies and personnel are in place and ready
for operation. A representative of the Council shall make an
on-site visit to the facilities of all new applicants to confirm
their readiness for operation prior to issuance of the initial
permit if the facilities are located in West Virginia.
(5) A school is considered to be established under the
provisions of this article on the date it first begins to operate
lawfully. An established school is not required to reapply for a
permit as a result of changes in governance; administration;
ownership; or form of operation.
(6) After the first permit year, an annual fee of five hundred
dollars is imposed on each school for each campus it operates in
this state.
(d) Each application shall be accompanied by a surety bond in
the penal sum of thirty-five thousand dollars for any school which
has its physical facilities located in this state and which has
operated in this state for at least ten years:
(1) If the school has changed ownership within the last ten
years by transfer of ownership control to a person who is a spouse,
parent, sibling, child or grandchild of the previous owner, the
surety bond shall continue in the penal sum of thirty-five thousand
dollars.
(2) Any school which has operated in West Virginia for fewer than ten years, excluding those schools which have changed
ownership within the last ten years as provided in subdivision (1)
of this section, and any school located in another state which
applies for a permit hereunder, shall provide a surety bond of
fifty thousand dollars.
(3) Any school may be required to increase its bond to one
hundred fifty thousand dollars if either of the following
conditions apply:
(A) The school's accreditation is terminated for cause; or
(B) The school's institutional eligibility under the Higher
Education Act of 1965, as amended, has been terminated for cause.
Expiration, nonrenewal or voluntary relinquishment of accreditation
or institutional eligibility under the Higher Education Act, or
failure to meet the requirements of one or more programs under the
Act, are not considered to be a termination for cause.
(4) Any school may be required to increase its bond to an
amount not to exceed four hundred thousand dollars if, in
accordance with the standards of the American Institute of
Certified Public Accountants, the school's audited financial
statements are qualified because the school's continued financial
viability as an ongoing concern is in doubt and the Council
determines an increased bond is reasonably necessary to protect the
financial obligations legally due the students then enrolled at the institution.
(A) A school may be required to maintain the increased bonding
requirements described above until all students attending classes
at the date of termination either graduate or withdraw.
(B) The bond may be continuous and shall be conditioned to
provide indemnification to any student suffering loss as a result
of any fraud or misrepresentation used in procuring the student's
enrollment, failure of the school to meet contractual obligations,
or failure of the school to meet the requirements of this section.
(C) The bond shall be given by the school itself as a blanket
bond covering all of its representatives.
(D) The surety on a bond may cancel the same upon giving
thirty days' notice in writing to the principal on the bond and to
the state Council and thereafter shall be relieved of liability for
any breach of condition occurring after the effective date of the
cancellation.
(e) A permit shall be valid for one year corresponding to the
effective date of the bond and may be renewed upon application,
accompanied by the required fee and the surety bond as herein
required. All fees collected for the issuance or renewal of a
permit shall be deposited in the State Treasury to the credit of
the Council.
(f) The Council may refuse a permit to any school if the Council finds that the school engages in practices which are
inconsistent with this section or with rules issued pursuant
thereto.
(g) A permit issued hereunder may be suspended or revoked by
the Council for fraud or misrepresentation in soliciting or
enrolling students, for failure of the school to fulfill its
contract with one or more students who are residents of West
Virginia or for violation of or failure to comply with any
provision of this section or with any regulation of the Council
pertinent thereto.
(1) Before taking any action to suspend or revoke a school's
permit, the Council shall give the school fifteen days' notice and
convene a hearing, if a hearing is requested by the school.
(2) Prior to the Council taking any adverse action, including
refusal, suspension or revocation of a permit, the Council shall
give the school reasonable opportunity to take corrective measures.
(3) Any refusal, suspension or revocation of a permit, or any
other adverse action against a school, shall comply with all
constitutional provisions, including due process, relating to the
protection of property rights.
(h) All correspondence, business, occupational or trade
schools which have been issued a permit shall make annual reports
to the Council on forms furnished by the Council and shall provide such appropriate information as the Council reasonably may require.
All correspondence, business, occupational or trade schools which
have been issued a permit shall furnish to the Council a list of
its official representatives. Each school shall be issued a
certificate of identification by the Council for each of its
official representatives.
(i) The issuance of a permit pursuant to this section does not
constitute approval or accreditation of any course or school. No
school, nor any representative of a school, may make any
representation stating, asserting or implying that a permit issued
pursuant to this section constitutes approval or accreditation by
the State of West Virginia, Council or any other department or
agency of the state.
(j) The Council is hereby authorized to adopt rules and
conduct on-site reviews to evaluate academic standards maintained
by schools for the awarding of certificates, diplomas, associate
degrees and specialized associate degrees.
(1) These standards may include curriculum, personnel,
facilities, materials and equipment.
(2) For accredited correspondence, business, occupational and
trade schools under permit on the first day of July, one thousand
nine hundred seventy-nine, which have their physical facilities
located in this state and which are accredited by the appropriate nationally recognized accrediting agency or association approved by
the United States Department of Education, the accrediting agency's
standards, procedures and criteria are accepted as meeting
applicable laws, standards and rules of the Council.
(3) Institutions which are institutionally accredited by
accrediting agencies recognized by the United States Department of
Education to establish academic standards for post-secondary
education may offer post-secondary educational programs leading to
certificates, diplomas and associate degrees and may award
certificates, diplomas and associate degrees to graduates who
successfully complete required programs in accordance with the
academic standards required by such accrediting agency.
(4) If a review undertaken by the Council indicates there may
be deficiencies in the academic standards the institution maintains
in its educational programs and if such deficiencies are of such a
material nature that they jeopardize continued accreditation, the
Council shall notify the institution. If the Council and the
institution are unable to agree on the deficiencies or the steps
necessary to correct the deficiencies, the Council shall consult
with the institution's accrediting agency regarding an academically
appropriate resolution which may include a joint on-site review by
the Council and the accrediting agency.
(5) The Council also may review the academic standards of unaccredited institutions and may require such institutions to
maintain recognized academic standards that are reasonably
appropriate to the nature of the institution and the training
offered.
(k) The Council may authorize an investigation of written
student complaints alleging a violation of this section, Council
rules or accreditation standards and may take appropriate action
based on the findings of such an investigation.
(l) All evaluations or investigations of correspondence,
business, occupational and trade schools and actions resulting from
such evaluations or investigations shall be made in accordance with
rules promulgated by the Council pursuant to article three-a,
chapter twenty-nine-a of this code.
(m) In regard to private, proprietary educational institutions
operating under this section of the code, accredited by a national
or regional accrediting agency or association recognized by the
United States Department of Education and which provide training at
a campus located in this state:
(1) Any rule or standard which is authorized by this or any
section of the code or other law and which is now in effect or
promulgated hereafter by the Council (or other agency with
jurisdiction) shall be clearly, specifically and expressly
authorized by narrowly construed enabling law and shall be unenforceable and without legal effect unless authorized by an Act
of the Legislature under the provisions of article three-a, chapter
twenty-nine-a of this code.
(2) Notwithstanding any other provision of this section or
other law to the contrary, the institution's accrediting agency
standards, procedures and criteria shall be accepted as the
standards and rules of the Council (or other agency with
jurisdiction) and as meeting other law or legal requirements
relating to the operation of proprietary institutions which such
Council or other agency has the legal authority to enforce under
any section of the code or other law. Nothing in this section
denies students the use of remedies that would otherwise be
available under state or federal consumer laws or federal law
relating to federal college financial assistance programs.
(3) Accredited institutions operating hereunder are hereby
recognized as postsecondary. Academic progress is measured and
reported in credit hours and all reports/documents are filed on a
credit-hour basis unless the institution notifies the Council that
it utilizes clock hours as its unit of measurement.
(n) A representative of any school who solicits, sells or
offers to sell courses of instruction to any resident of this state
for consideration or remuneration unless the school first applies
for a permit, or obtains a permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred
dollars per day per violation, or imprisoned in jail not more than
sixty days, or both fined and imprisoned. No correspondence,
business, occupational or trade school shall maintain an action in
any court of this state to recover for services rendered pursuant
to a contract solicited by the school if the school did not hold a
valid permit at the time the contract was signed by any of the
parties thereto. The Attorney General or any county prosecuting
attorney, at the request of the Council or upon his or her own
motion, may bring any appropriate action or proceeding in any court
of competent jurisdiction for the enforcement of the provisions of
this section relating to permits, bonds and sureties.
(o) In regard to institutions operating under this section,
all substantive standards and procedural requirements established
by the Council (or the West Virginia state program review entity or
other agency with jurisdiction over institutions operating
hereunder) shall meet all substantive and procedural standards of
due process relating to the protection of an individual citizen's
property rights as provided under the United States Constitution
and shall follow the substantive standards and procedural
requirements established by or under authority of this section.
ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF RESEARCH,
DOCTORAL-GRANTING PUBLIC UNIVERSITIES.
§18B-3-1. Legislative findings, purpose; intent; definition.
(a) The Legislature finds that an effective and efficient
system of doctoral-level education is vital to providing for the
economic well-being of the citizens of West Virginia and for
accomplishing established state goals and objectives. As the only
research and doctoral-granting public universities in the state,
Marshall University and West Virginia University are major assets
to the citizens of West Virginia and must be an integral part of
any plan to strengthen and expand the economy.
(b) The Legislature further finds that these two institutions
must compete in both a national and global environment that is
rapidly changing, while they continue to provide high quality
education that is both affordable and accessible and remain
accountable to the people of West Virginia for the most efficient
and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and
West Virginia University, under the direction of their respective
governing boards, have sufficient staff and internal expertise to
manage operational governance of their institutions in an efficient
and accountable manner and can best fulfill their public missions
when their governing boards are given flexibility and autonomy
sufficient to meet state goals established in this article and in
section one-a, article one of this chapter.
(d) Therefore, the purposes of this article include, but are
not limited to, the following:
(1) Enhancing the competitive position of Marshall University
and West Virginia University in the current environment for
research and development;
(2) Providing the governing boards of these institutions with
operational flexibility and autonomy, including tools to promote
economic development in West Virginia;
(3) Encouraging the development of research expertise in areas
directly beneficial to the state; and
(4) Focusing the attention and resources of the governing
boards on state goals and priorities to enhance the competitive
position of the state and the economic, social and cultural
well-being of its citizens.
(e) The following terms wherever used or referred to in this
chapter have the following meaning, unless a different meaning
plainly appears from the context:
(1) "State institution of higher education known as Marshall
University" means the doctoral-granting research institution and
does not include Marshall Community and Technical College; and
(2) "State institution of higher education known as West
Virginia University" means the doctoral-granting research
institution and does not include any of the following:
(A) The regional campus known as West Virginia University
Institute of Technology;
(B) The administratively linked institution known as the
Community and Technical College at West Virginia University
Institute of Technology; and
(C) The regional campus known as West Virginia University at
Parkersburg.
(f) The governing boards of Marshall University and West
Virginia University each have the power and the obligation to
perform functions, tasks and duties as prescribed by law and to
exercise their authority and carry out their responsibilities in a
manner that is consistent with and not in conflict with the powers
and duties assigned by law to the West Virginia Council for
Community and Technical College Education and the Higher Education
Policy Commission.
(g) While the governing boards of Marshall University and West
Virginia University, respectively, may choose to delegate powers
and duties to the presidents of the state institutions of higher
education known as Marshall University and West Virginia University
pursuant to subsection (s), section four, article two-a of this
chapter, ultimately, it is they who are accountable to the
Legislature, the Governor and the citizens of West Virginia for
meeting the established state goals set forth in this article and section one-a, article one of this chapter. Therefore, it is the
intent of the Legislature that grants of operational flexibility
and autonomy be made directly to the governing boards and are not
grants of operational flexibility and autonomy to the presidents of
these institutions.
§18B-3-2. Computer and computer equipment donation program.
Notwithstanding any other provision of this code to the
contrary, the governing boards are authorized to create a program
to donate surplus computers and computer-related equipment to
education facilities, nonprofit organizations, juvenile detention
centers, municipal and county public safety offices and other
public, charitable or educational enterprises or organizations in
this state.
(a) Only equipment which otherwise would be transferred to the
Surplus Property Unit of the Purchasing Division may be donated;
(b) The governing boards shall keep records and accounts that
clearly identify the equipment donated, the age of the equipment,
the reasons for declaring it obsolete and the name of the education
facility, nonprofit organization, juvenile detention center,
municipal or county public safety office or other public,
charitable or educational enterprise or organization to which the
equipment was donated;
(c) Each governing board shall promulgate a rule in accordance with the provisions of section six, article one of this chapter to
implement the donation program. The rules shall specify the
procedures to be used for record keeping and shall provide for fair
and impartial selection of equipment recipients.
§18B-3-3. Relationship of governing boards to the Commission and
the Council.
(a) Relationship between the Commission and the governing
boards. -
(1) The Commission functions as a state-level coordinating
board exercising its powers and duties in relation to the governing
boards of Marshall University and West Virginia University only as
specifically prescribed by law;
(2) The primary responsibility of the Commission is to work
collaboratively with the governing boards to research, develop and
propose policy that will achieve the established goals and
objectives set forth in this chapter and chapter eighteen-c of this
code; and
(3) The Commission has specific responsibilities which
include, but are not limited to, the following:
(A) Advocating for public higher education at the state level;
and
(B) Collecting and analyzing data, researching, developing
recommendations, and advising the Legislature and the Governor on broad policy initiatives, use of incentive funding, national and
regional trends in higher education and issues of resource
allocation involving multiple governing boards.
(b) Relationship between the Council and the governing boards.
-
(1) The Council maintains all powers and duties assigned to it
by law or policy relating to the administratively linked
institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and
Technical College at West Virginia University Institute of
Technology and the regional campus known as West Virginia
University at Parkersburg;
(2) In addition to recognizing the authority assigned by law
to the Council, it is the responsibility of the governing boards of
Marshall University and West Virginia University to exercise their
authority and carry out their responsibilities in a manner that is
consistent with and complementary to the powers and duties assigned
by law or policy to the community and technical colleges or to the
Council;
(3) It is further the responsibility of the governing boards
to abide by the rules duly promulgated by the Council relating to
the community and technical colleges, to strengthen the community
and technical college mission of these institutions, to aid them in meeting the essential conditions set forth in section three,
article three-c of this chapter and to promote them to students,
parents and the community as independently accredited institutions
in their own right.
(c) The governing boards shall work collaboratively with the
Commission, the Council and their staff to provide any and all
information requested by the Commission or the Council in an
appropriate format and in a timely manner.
§18B-3-4. Duty of governing boards to address state priorities.
(a) The expertise of faculty and graduate students at the
state institutions of higher education known as Marshall University
and West Virginia University is important to every citizen of this
state. It is the responsibility of the governing boards to channel
this expertise into research and analysis that will yield
measurable benefits to the citizens of West Virginia. Therefore,
in addition to the goals for post-secondary education established
in section one-a, article one of this chapter, and goals
established elsewhere in this code, it is the responsibility of the
governing boards in collaboration to concentrate attention and
resources on certain specific state priorities that have a direct,
positive impact on the economic, social, and cultural well-being of
the people of West Virginia. These priorities include, but are not
limited to, the following:
(1) Developing Regional Brownfield Assistance Centers pursuant
to section seven, article eleven of this chapter;
(2) Performing professional development-related research and
coordinating the delivery of professional development to educators
in the public schools of the state pursuant to the provisions of
article two, chapter eighteen of this code;
(3) Building subject matter expertise in public school
finance, including mastery of the theories and concepts used in
developing formulas to provide state-level financial support to
public education; and
(4) Researching and proposing cost-efficient methods to the
Legislature for governing boards other than Marshall University and
West Virginia University to dispose of obsolete computers and
computer-related equipment.
(b) The Legislature may, but is not required to, make
additional appropriations for the benefit of the state institutions
of higher education known as Marshall University and West Virginia
University to assist them in fulfilling the purposes set forth in
subsection (a) of this section.
(c) In addition to the priorities established in subsection
(a) of this section, each governing board separately shall focus
resources and attention on improving their graduation rates for
full-time undergraduate students as a specific institutional priority. The graduation rate is measured as a percentage of the
undergraduate students who obtain a degree within six years of the
date of enrollment as full-time freshmen. The governing boards
shall develop and implement plans to reach the following goals:
(1) Marshall University shall attain a graduation rate for
full-time undergraduate students of forty percent by the first day
of July, two thousand eight, and shall attain a graduation rate for
full-time undergraduate students of forty-five percent by the first
day of July, two thousand ten.
(2) West Virginia University shall attain a graduation rate
for full-time undergraduate students of sixty percent by the first
day of July, two thousand eight, and shall attain a graduation rate
for full-time undergraduate students of sixty-three percent by the
first day of July, two thousand ten.
(3) The Commission shall monitor and report by the first day
of December, two thousand five, and annually thereafter to the
Legislative Oversight Commission on Education Accountability on the
progress of the governing boards toward meeting the goals set forth
in subdivisions (1) and (2) of this subsection.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-5. Campus police officers; appointment; qualifications;
authority; compensation and removal.
(a) The governing boards are hereby authorized to may appoint bona fide residents of this state to act serve as campus police
officers upon any premises owned or leased by the State of West
Virginia and under the jurisdiction of the governing boards,
subject to the conditions and restrictions hereinafter imposed
established in this section.
(1) A person who previously was qualified for employment as a
law-enforcement officer for a state agency or political subdivision
of the state is considered certified for appointment as a campus
police officer at the state institutions of higher education under
the jurisdiction of the governing boards of Marshall University and
West Virginia University.
(2) Before performing duties as a campus police officer in any
county, each person so appointed shall first qualify therefor in
the same manner as is a person shall qualify as is required of
county police officers by: the
(A) Taking and filing of an oath of office as required by
article one, chapter six of this code; and by
(B) Posting an official bond as required by article two,
chapter six of this code.
(b) A campus police officer shall have authority to carry a
gun and may carry a gun and any other dangerous weapon while on
duty if the campus police officer fulfills the certification
requirement for law-enforcement officers under section five, article twenty-nine, chapter thirty of this code or meets the
requirements of subsection (a) of this section.
(c) It is the duty of any person so appointed and qualified as
a campus police officer to preserve law and order: only upon those
(1) On the premises under the jurisdiction of the governing
boards and board; and
(2) On any other street, road or thoroughfare, except
controlled access and open country highways, immediately adjacent
to or passing through such premises, to which the person may be
officer is assigned by the president or other administrative head
of the state institution of higher education.
(A) For this purpose the purpose of this subdivision, the
campus police officer is a law-enforcement officer pursuant to the
provisions of section one, article twenty-nine, chapter thirty of
this code. and as to offenses committed within any area so
assigned
(B) The officer has and may exercise all the powers and
authority and of a law-enforcement officer as to offenses committed
within the area assigned;
(C) The officer is subject to all the requirements and
responsibilities of a law-enforcement officer; Provided, That the
assignment of campus police officers to the duties authorized by
this section may not be deemed to
(D) Authority assigned pursuant to this subdivision does not
supersede in any way the authority or duty of other peace law-
enforcement officers to preserve law and order on such premises.
In addition, the
(E) Campus police officers appointed under provisions of this
section have authority to assist local peace officers may assist a
local law-enforcement agency on public highways. in the control of
The assistance may be provided to control traffic in and around
premises owned by the state when: of West Virginia whenever such
(i) Traffic is generated as a result of athletic or other
activities conducted or sponsored by a state institution of higher
education; and when such
(ii) The assistance has been requested by the local peace
officers local law-enforcement agency.
(F) Campus police officers may assist a local law-enforcement
agency in any location under the agency's jurisdiction at the
request of the agency.
(d) The salary of all such campus police officers shall be a
campus police officer is paid by the appropriate governing board.
Each state institution may furnish each campus police officer with
a firearm and an official uniform to be worn while on duty. and
The institution shall furnish and require each officer while on
duty to wear a shield with an appropriate inscription and to carry credentials certifying to the person's identity and authority as a
campus police officer. The
(e) A governing boards board may at their its pleasure revoke
the authority of any campus police officer and such officers serve
at the will and pleasure of the governing board. The president or
other administrative head of the state institution of higher
education shall report the termination of employment of a campus
police officer by filing a notice to that effect in the office of
the clerk of each county in which the campus police officer's oath
of office was filed.
§18B-4-5a. Crimes committed on campus of institutions of higher
education.
(a) The president or a designee of each state institution of
higher education in this state shall on a regular and timely basis
provide information to the public concerning alleged crimes
occurring on the institution's property which have been reported to
a campus police officer or any other officer of the institution.
(1) A crime shall be deemed reported whenever is considered
reported when:
(A) A campus police officer or other officer of the
institution determines that the report is credible; when
(B) The report is submitted in writing and attested to by the
victim on such forms as shall be made available by forms at the institution for such purpose; or when
(C) The institution is notified by a law-enforcement agency of
the reporting of a crime alleged to have occurred on the
institution's property.
(2) Such reports shall be are referred within twenty-four
hours to the appropriate law-enforcement agencies, as defined in
section one, article twenty-nine, chapter thirty of this code, for
further investigation.
(b) For the state institutions of higher education under the
jurisdiction of the Governing Board of Marshall University and for
the state institution of higher education known as West Virginia
University only, the campus police shall investigate a crime within
their respective jurisdictions for up to thirty days if the county
prosecuting attorney does not reassign the case to another agency
sooner.
(c) The information required to be made available to the
public regarding the crime report shall be so available within ten
days of the report. and The information shall include the nature
of the criminal offense, the date of the offense, the general
location of the offense (such as a designation of a specific
building or area of the campus) and the time of day when the
offense occurred. Provided, That this requirement shall not be
construed to
(1) This subsection does not require the release of any
information which may disclose the identity of the victim.
Provided, however, That
(2) The institution shall withhold the information required to
be made available to the public for a longer period upon
certification of investigative need that the information be
withheld from the public. such certification to
(A) The certification shall be filed by an officer of one of
the investigating law-enforcement agencies with the president of
the institution or the designee to whom the duties required by this
section have been delegated. Provided further, That
(B) The required information may in no event not be withheld
after an arrest has been made in connection with the crime report.
(d) For purposes of this section, "crime" is defined as those
offenses required to be reported under the federal Crime Awareness
and Campus Security Act of 1990, as amended. and under section
eight-a, article one of this chapter. and "Crime" includes murder,
rape, robbery, aggravated assault, burglary, motor vehicle theft
and arrests for liquor, drug or weapons laws violations.
(e) The governing boards Council and Commission shall provide
crime reporting forms to institutions under their respective
jurisdictions and promulgate such a legislative rule pursuant to
the provisions of article three-a, chapter twenty-nine-a of this code as are necessary for the implementation of to implement this
section. Such forms and rules shall be provided by the central
office to other institutions of higher education in this state to
assist them with the implementation of this section.
§18B-4-6. Acquisition, operation and regulation of parking areas
and facilities at state institutions of higher education;
regulation of parking, speed and flow of traffic on campus
roads and driveways; civil and criminal penalties; disposition
of revenue.
(a) The governing boards are hereby authorized to construct,
maintain and operate automobile parking facilities or areas upon
any premises owned or leased at any state institution of higher
education under their jurisdiction for use by students, faculty,
staff and visitors. The governing boards may charge fees for use
of the parking facilities or areas under their control. All moneys
collected for the use of the parking facilities or areas shall be
paid to the credit of the state institution of higher education at
which the fees were charged into a special fund which is hereby
created in the State Treasury. The moneys in the fund shall be
used are used first to pay the cost of maintaining and operating
the parking facilities or areas. but
Any excess not needed for this purpose may be used for the
acquisition of property by lease or purchase and the construction thereon of additional parking facilities or areas. Any money in
the fund not needed immediately for the acquisition, construction,
maintenance or operation of the parking facilities or areas may be
temporarily invested by the governing boards with the state board
of investments with the West Virginia Investment Management Board
to the credit of the state institution of higher education at by
which the fees were charged.
(b) Notwithstanding any other motor vehicle or traffic law or
regulation to the contrary, the governing boards are hereby
authorized to a governing board may regulate and control at any
state institution of higher education under their under its
jurisdiction the speed, flow and parking of vehicles on campus
roads, driveways and parking facilities or areas.
(1) Rules for this purpose shall be promulgated by the
governing boards in the manner prescribed in chapter twenty-nine-a
of this code and in section six, article one of this chapter; and
(2) When so promulgated, shall the rules have the force and
effect of law.
(3) The governing board shall post in a conspicuous location
in each parking facility or area, a summary of the rules governing
the use of the facility or area including, but not limited to, the
availability of temporary parking permits and where same these
permits may be obtained and of the penalties which may be imposed for violations of the rules. shall be conspicuously posted
(4) The governing board shall post in a conspicuous location
along each campus road and driveway notice signs pertaining to the
speed of vehicles, spaces available for parking, directional flow
of traffic and penalties which may be imposed for violations of the
rules. shall be conspicuously posted
(c) Any person parking or operating any vehicle or operating
any a vehicle in violation of the rules shall be issued a citation:
(1) Describing the offense charged; and
(2) Ordering an appearance:
(A) Within ten days, excluding Saturdays, Sundays and holidays
observed by the college or university state institution, before a
designated official of the state institution of higher education,
and institution;
(B) Before a magistrate located in the county if the person
cited fails to appear within said the ten days; ordering an
appearance before a magistrate located in the county in which the
state institution of higher education is located or
(C) Before the judge of the municipal court, if the state
institution of higher education is located within a municipality
having such an official, and the person cited fails to appear
within the ten days.
(d) The designated official of the state institution of higher education shall have has exclusive jurisdiction of the offense
during the ten-day period until the citations are forwarded to a
magistrate. For the state institutions of higher education under
the jurisdiction of the Governing Board of Marshall University and
for the state institution of higher education known as West
Virginia University only, the designated official of the
institution has exclusive jurisdiction of the offense for thirty
days following the violation. After thirty days the official
forwards the citation to a magistrate. Any person so cited may
plead no contest to the offense and, by so pleading, shall be is
subject to a civil penalty to be determined uniformly by the
designated official and commensurate with the severity of the
offense. in an amount not more than ten For the state institutions
under the jurisdiction of the Governing Board of Marshall
University and for the state institution of higher education known
as West Virginia University only, the amount imposed may not exceed
twenty dollars. For all other institutions the amount may not
exceed ten dollars, for each offense as partial reimbursement to
the state institution of higher education for the cost of
regulating traffic and parking. In the case of the state
institutions under the jurisdiction of the Governing Board of
Marshall University and in the case of the state institution of
higher education known as West Virginia University only, the designated official shall determine the penalty uniformly,
commensurate with the severity of the offense, and may apply
academic restrictions in lieu of requiring a student to appear in
court and receive penalties otherwise provided in this section.
Moneys derived from civil penalties imposed herein shall be
deposited in the special fund in the state treasury created by this
section and credited to the state institution of higher education
at to which the penalty was paid.
(e) Upon the expiration of the ten days ten-day or thirty-day
period, as applicable, or upon a pleading of not guilty before the
designated official of the state institution of higher education
within the ten days applicable period, the magistrate or judge of
the municipal court shall have has jurisdiction of the offense.
and Any person cited under the provisions of this section, upon a
finding of guilty by the magistrate or municipal judge, shall be is
subject to a fine of for each offense by the state institutions
under the jurisdiction of the Governing Board of Marshall
University and for the state institution of higher education known
as West Virginia University only, of up to forty dollars, and at
all other state institutions not less than ten dollars nor more
than twenty dollars, for each offense the amount to be commensurate
with the severity of the offense.
(f) Each designated official of the a state institution of higher education presiding over a case under the provisions of this
section shall keep or cause to be kept a record of every citation
which alleges a violation of such provisions, or the rules
promulgated in accordance therewith, and shall keep a record of
every official action in reference thereto including, but not
limited to, a record of every plea of no contest, conviction or
acquittal, of the offense charged, and the amount of the fine or of
the civil penalty resulting from each citation.
(d) (g) Whenever a vehicle is parked on any state institution
of higher education campus road, driveway or parking facility or
area in a manner which violates posted rules and substantially
impedes the flow of traffic or endangers the health and safety, the
institution may, in addition to the issuing of a citation and
subsequent procedures set forth herein, remove the vehicle, by
towing or otherwise, to an area owned by the institution or areas
designated for this purpose. The vehicle, having been towed to the
designated area or areas, may be rendered immovable by use of
locking wheel blocks or other device not damaging to the vehicle.
The state institution of higher education shall maintain any
vehicle so towed in the same condition as it was immediately prior
to being towed, but shall not be liable for any damage to a vehicle
towed to, or kept in, a designated area pursuant to the provisions
of this section. The state institution of higher education shall pay for the cost of removing the vehicle and shall have a right to
reimbursement from the owner for this cost and for the reasonable
cost of keeping the vehicle in the designated area. Until payment
of these costs, the state institution of higher education may
retain possession of the vehicle and the institution shall have a
lien on the vehicle for the amount due. The state institution of
higher education may enforce this lien in the manner provided in
section fourteen, article eleven, chapter thirty-eight of this code
for the enforcement of other liens. For the state institutions of
higher education under the jurisdiction of the Governing Board of
Marshall University and for the state institution of higher
education known as West Virginia University only, the provisions of
this subsection also apply when a vehicle is subject to three or
more unpaid citations.
(h) If, at any time, Marshall Community and Technical College
ceases to share a physical campus location with Marshall
University, it may not be included as an institution under the
jurisdiction of the Governing Board of Marshall University for the
purposes of subsections (a),(d),(e) and (g) of this section.
§18B-4-7. Accreditation of institutions of higher education;
standards for degrees.
The Council shall make rules for the accreditation of
community and technical colleges in this state and shall determine the minimum standards for conferring degrees. The Commission shall
make rules for the accreditation of colleges and universities in
this state, except the governing boards of Marshall University and
West Virginia University shall make rules for the state
institutions of higher education known as Marshall University and
West Virginia University, and shall determine the minimum standards
for conferring degrees. The governing boards of Marshall
University and West Virginia University shall promulgate rules
pursuant to the provisions of section six, article one of this
chapter for the accreditation of the state institutions of higher
education known as Marshall University and West Virginia
University. An institution of higher education may not confer any
degree on any basis of work or merit below the minimum standards
prescribed by the Council, or Commission or the governing boards.
Nothing in this section infringes upon the rights, including rights
to award degrees, granted to any institution by charter given
according to law, or by actions of the Council or Commission or
their predecessors, prior to the effective date of this section.
With the approval of the Commission, governing boards of
institutions which currently offer substantial undergraduate course
offerings and a master's degree in a discipline are authorized to
grant baccalaureate degrees in that discipline.
Except as otherwise provided in this section, a charter or other instrument containing the right to confer degrees of higher
education status may not be granted by the State of West Virginia
to any institution, association or organization within the state,
nor may any such degree be awarded, until the condition of
conferring the degree has first been approved in writing by the
Council, or Commission or appropriate governing board.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and
facilities.
The governing boards, and the Commission and the Council are
authorized and empowered to enter into contracts and expend funds
for programs, services and facilities provided by public and
private education institutions, associations, boards, agencies,
consortia, corporations, partnerships, individuals and local, state
and federal governmental bodies within and outside of West Virginia
in order that maximum higher education opportunities of high
quality may be provided to the citizens of the state in the most
economical manner. In no event may a contract for such services
and facilities be entered into unless the Commission, the Council
or the governing boards have determined that such services and
facilities are necessary and would be at a savings to the state.
§18B-5-4. Purchase or acquisition of materials, supplies,
equipment, services and printing.
(a) The Council, Commission and each governing board, through
the Vice Chancellor for Administration, shall purchase or acquire
all materials, supplies, equipment, services and printing required
for that governing board or the Council or Commission, as
appropriate, and the state institutions of higher education under
their jurisdiction, except the governing boards of Marshall
University and West Virginia University, respectively, are subject
to the provisions of subsection (d) of this section.
(b) The Commission and Council jointly shall adopt rules
governing and controlling acquisitions and purchases in accordance
with the provisions of this section. The rules shall assure that
the Council, Commission and governing boards:
(1) Do not preclude any person from participating and making
sales thereof to the governing board or to the Council or
Commission except as otherwise provided in section five of this
article. Provision of consultant services such as strategic
planning services will not preclude or inhibit the governing
boards, Council or Commission from considering any qualified bid or
response for delivery of a product or a commodity because of the
rendering of those consultant services;
(2) Establish and prescribe specifications, in all proper
cases, for materials, supplies, equipment, services and printing to
be purchased;
(3) Adopt and prescribe such purchase order, requisition or
other forms as may be required;
(4) Negotiate for and make purchases and acquisitions in such
quantities, at such times and under contract, in the open market or
through other accepted methods of governmental purchasing as may be
practicable in accordance with general law;
(5) Advertise for bids on all purchases exceeding twenty-five
thousand dollars, to purchase by means of sealed bids and
competitive bidding or to effect advantageous purchases through
other accepted governmental methods and practices;
(6) Post notices of all acquisitions and purchases for which
competitive bids are being solicited in the purchasing office of
the specified institution involved in the purchase, at least two
weeks prior to making such purchases and ensure that the notice is
available to the public during business hours;
(7) Provide for purchasing in the open market;
(8) Provide for vendor notification of bid solicitation and
emergency purchasing;
(9) Provide that competitive bids are not required for
purchases of twenty-five thousand dollars or less; and
(10) Provide for not fewer than three bids where bidding is
required. If fewer than three bids are submitted, an award may be
made from among those received.
(c) When a state institution of higher education submits a
contract, agreement or other document to the Attorney General for
approval as to form as required by this chapter the following
conditions apply:
(1) "Form" means compliance with the Constitution and statutes
of the State of West Virginia.
(2) The Attorney General does not have the authority to reject
a contract, agreement or other document based on the substantive
provisions therein or any extrinsic matter so long as there is
compliance with the Constitution and statutes of this State.
(3) Within fifteen days of receipt, the Attorney General must
notify the appropriate state institution of higher education in
writing that the contract, agreement or other document is approved
or disapproved as to form. If the contract, agreement or other
document is disapproved as to form, the notice of disapproval must
identify each defect that supports the disapproval.
(4) If the state institution elects to challenge the
disapproval by filing a writ of mandamus or other action and
prevails, then the Attorney General shall pay reasonable attorney
fees and costs incurred.
(d) Pursuant to this subsection, the governing boards of
Marshall University and West Virginia University, respectively,
may:
(1) Purchase or acquire all materials, supplies, equipment,
services and printing required for the governing board without
approval from the Commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as
provided in subsection (f) of this section;
(2) Make purchases from cooperative buying groups, consortia,
the federal government or from federal government contracts if the
materials, supplies, services, equipment or printing to be
purchased is available from these groups and if this would be the
most financially advantageous manner of making the purchase;
(3) Select and acquire by contract or lease all grounds,
buildings, office space or other space, the rental of which is
necessarily required by the governing board; and
(4) Use purchase cards under terms approved for the
Commission, the Council and governing boards of state institutions
of higher education and participate in any expanded program of use
as provided in subsection (w) of this section.
(e) The governing boards shall adopt sufficient accounting and
auditing procedures and promulgate and adopt appropriate rules
subject to the provisions of section six, article one of this
chapter to govern and control acquisitions, purchases, leases and
other instruments for grounds, buildings, office or other space or
lease-purchase agreements.
(b) (f) The Council, Commission or each governing board,
through the Vice Chancellor for Administration, may issue a check
in advance to a company supplying postage meters for postage used
by that board, the Council or Commission and by the state
institutions of higher education under their jurisdiction.
(c) (g) When a purchase is to be made by bid, any or all bids
may be rejected. However, all purchases based on advertised bid
requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied,
their conformity with specifications, their suitability to the
requirements of the governing boards, Council or Commission and
delivery terms. The preference for resident vendors as provided in
section thirty-seven, article three, chapter five-a of this code
apply to the competitive bids made pursuant to this section.
(d) (h) The governing boards, Council and Commission shall
maintain a purchase file, which shall be a public record and open
for public inspection. After the award of the order or contract,
the governing boards, Council and Commission shall indicate upon
the successful bid that it was the successful bid and shall further
indicate why bids are rejected and, if the mathematical low vendor
is not awarded the order or contract, the reason therefor. A
record in the purchase file may not be destroyed without the
written consent of the Legislative Auditor. Those files in which the original documentation has been held for at least one year and
in which the original documents have been reproduced and archived
on microfilm or other equivalent method of duplication may be
destroyed without the written consent of the Legislative Auditor.
All files, no matter the storage method, shall be open for
inspection by the Legislative Auditor upon request.
(e) (i) The Commission and Council also jointly shall adopt
rules to prescribe qualifications to be met by any person who is to
be employed as a buyer pursuant to this section. These rules shall
require that a person may not be employed as a buyer unless that
person, at the time of employment, either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any
unit of government or for any business, commercial or industrial
enterprise.
(f) (j) Any person making purchases and acquisitions pursuant
to this section shall execute a bond in the penalty of fifty
thousand dollars, payable to the State of West Virginia, with a
corporate bonding or surety company authorized to do business in
this state as surety thereon, in form prescribed by the Attorney
General and conditioned upon the faithful performance of all duties
in accordance with this section and sections five through eight,
inclusive, of this article and the rules of the governing board and the Council and Commission. In lieu of separate bonds for such
buyers, a blanket surety bond may be obtained. Any such bond shall
be filed with the Secretary of State. The cost of any such bond
shall be paid from funds appropriated to the applicable governing
board or the Council or Commission.
(g) (k) All purchases and acquisitions shall be made in
consideration and within limits of available appropriations and
funds and in accordance with applicable provisions of article two,
chapter five-a of this code relating to expenditure schedules and
quarterly allotments of funds. Notwithstanding any other provision
of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are
required to be encumbered and they may be entered into the state's
centralized accounting system by the staff of the Commission,
Council or governing boards to satisfy the requirements of article
two, chapter five-a of this code and specifically sections
twenty-six, twenty-seven and twenty-eight of said article to
determine whether the amount of the purchase is within the
Commission's, Council's or governing board's quarterly allotment,
is in accordance with the approved expenditure schedule and
otherwise conforms to the provisions of said article.
(h) (l) The governing boards, Council and Commission may make
requisitions upon the Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the total of the
appropriations for the governing board, Council or Commission, and
the Auditor shall draw a warrant upon the Treasurer for such
accounts. All advance allowance accounts shall be accounted for by
the applicable governing board or the Council or Commission once
every thirty days or more often if required by the State Auditor.
(i) (m) Contracts entered into pursuant to this section shall
be signed by the applicable governing board or the Council or
Commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval
as to form by the Attorney General is considered approved if the
Attorney General has not responded within fifteen days of
presentation of the contract. A contract or a change order for
that contract and notwithstanding any other provision of this code
to the contrary, associated documents such as performance and
labor/material payments, bonds and certificates of insurance which
use terms and conditions or standardized forms previously approved
by the Attorney General and do not make substantive changes in the
terms and conditions of the contract do not require approval as to
form by the Attorney General. The Attorney General shall make a
list of those changes which he or she deems considers to be
substantive and the list, and any changes thereto, shall be
published in the State Register. A contract that exceeds the dollar amount requiring competitive sealed bids in this section
shall be filed with the State Auditor. If requested to do so, the
governing boards, Council or Commission shall make all contracts
available for inspection by the State Auditor. The governing
board, Council or Commission, as appropriate, shall prescribe the
amount of deposit or bond to be submitted with a bid or contract,
if any, and the amount of deposit or bond to be given for the
faithful performance of a contract.
(j) (n) If the governing board, Council or Commission
purchases or contracts for materials, supplies, equipment, services
and printing contrary to the provisions of sections four through
seven of this article or the rules pursuant thereto, such purchase
or contract is void and of no effect.
(k) (o) Any governing board or the Council or Commission, as
appropriate, may request the Director of purchases to make
available, from time to time, the facilities and services of that
department to the governing boards, Council or Commission in the
purchase and acquisition of materials, supplies, equipment,
services and printing and the director of purchases shall cooperate
with that governing board, Council or Commission, as appropriate,
in all such purchases and acquisitions upon such request.
(l) (p) Each governing board or the Council or Commission, as
appropriate, shall permit private institutions of higher education to join as purchasers on purchase contracts for materials,
supplies, services and equipment entered into by that governing
board or the Council or Commission. Any private school desiring to
join as purchasers on such purchase contracts shall file with that
governing board or the Council or Commission an affidavit signed by
the president of the institution of higher education or a designee
requesting that it be authorized to join as purchaser on purchase
contracts of that governing board or the Council or Commission, as
appropriate. The private school shall agree that it is bound by
such terms and conditions as that governing board or the Council or
Commission may prescribe and that it will be responsible for
payment directly to the vendor under each purchase contract.
(m) (q) Notwithstanding any other provision of this code to
the contrary, the governing boards, Council and Commission, as
appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government
contracts if the materials, supplies, services, equipment or
printing to be purchased is available from cooperative buying
groups, consortia, the federal government or from a federal
contract and purchasing from the cooperative buying groups,
consortia, federal government or from a federal government contract
would be the most financially advantageous manner of making the
purchase.
(n) (r) An independent performance audit of all purchasing
functions and duties which are performed at any state institution
of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint
Committee on Government and Finance shall conduct the performance
audit and the governing boards, Council and Commission, as
appropriate, are responsible for paying the cost of the audit from
funds appropriated to the governing boards, Council or Commission.
(1) The governing boards of Marshall University and West
Virginia University, respectively, shall provide for independent
performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period
that has elapsed since the date of the preceding audit.
(3) Copies of all appropriate documents relating to any audit
performed by the governing boards of Marshall University and West
Virginia University shall be furnished to the Joint Committee on
Government and Finance and the Legislative Oversight Commission on
Education Accountability within thirty days of the date the audit
report is completed.
(o) (s) The governing boards shall require each institution
under their respective jurisdictions to notify and inform every
vendor doing business with that institution of the provisions of section fifty-four, article three, chapter five-a of this code,
also known as the Prompt Pay Act of 1990.
(p) (t) Consultant services, such as strategic planning
services, may not preclude or inhibit the governing boards, Council
or Commission from considering any qualified bid or response for
delivery of a product or a commodity because of the rendering of
those consultant services.
(q) (u) After the Commission or Council, as appropriate, has
granted approval for lease-purchase arrangements by the governing
boards, a governing board may enter into lease-purchase
arrangements for capital improvements, including equipment, except
the governing boards of Marshall University and West Virginia
University may enter into lease-purchase arrangements for the state
institutions of higher education known as Marshall University and
West Virginia University without seeking the approval of the
Commission or the Council. Any lease-purchase arrangement so
entered shall constitute a special obligation of the State of West
Virginia. The obligation under a lease-purchase arrangement so
entered may be from any funds legally available to the institution
and must be cancelable at the option of the governing board or
institution at the end of any fiscal year. The obligation, any
assignment or securitization thereof, never constitutes an
indebtedness of the State of West Virginia or any department, agency or political subdivision thereof, within the meaning of any
constitutional provision or statutory limitation, and may not be a
charge against the general credit or taxing powers of the state or
any political subdivision thereof. Such facts shall be plainly
stated in any lease-purchase agreement. Further, the
lease-purchase agreement shall prohibit assignment or
securitization without consent of the lessee and the approval of
the agreement as to form by the Attorney General of West Virginia.
Proposals for any arrangement must be requested in accordance with
the requirements of this section and any rules or guidelines of the
Commission and Council. In addition, any lease-purchase agreement
which exceeds one hundred thousand dollars total shall be approved
as to form by the Attorney General of West Virginia. The interest
component of any lease-purchase obligation is exempt from all
taxation of the State of West Virginia, except inheritance, estate
and transfer taxes. It is the intent of the Legislature that if
the requirements set forth in the Internal Revenue Code of 1986, as
amended, and any regulations promulgated pursuant thereto are met,
the interest component of any lease-purchase obligation also is
exempt from the gross income of the recipient for purposes of
federal income taxation and may be designated by the governing
board or the president of the institution as a bank-qualified
obligation.
(r) (v) Notwithstanding any other provision of this code to
the contrary, the Commission, Council and governing boards have the
authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in
accordance with this paragraph and as provided below:
(1) The Commission, Council and governing boards have sole
authority to select and to acquire by contract or lease all
grounds, buildings, office space or other space, the rental of
which is necessarily required by the Commission, Council or
governing boards for the institutions under their jurisdiction.
For state institutions of higher education other than Marshall
University and West Virginia University, the Chief Executive
Officer of the Commission, Council or an institution shall certify
the following:
(A) That the grounds, buildings, office space or other space
requested is necessarily required for the proper function of the
Commission, Council or institution;
(B) That the Commission, Council or institution will be
responsible for all rent and other necessary payments in connection
with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or
other space is not available on grounds and in buildings currently
owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission,
Council or a governing board shall determine the fair rental value
for the rental of the requested grounds, buildings, office space or
other space, in the condition in which they exist, and shall
contract for or lease the premises at a price not to exceed the
fair rental value.
(2) The Commission, Council and governing boards are
authorized to enter into long-term agreements for buildings, land
and space for periods longer than one fiscal year but not to exceed
forty years. Any purchase of real estate, any lease-purchase
agreement and any construction of new buildings or other
acquisition of buildings, office space or grounds resulting
therefrom, pursuant to the provisions of this subsection shall be
presented by the Commission or Council, as appropriate, to the
Joint Committee on Government and Finance for prior review. Any
such lease shall contain, in substance, all the following
provisions:
(A) That the Commission, Council or governing board, as
lessee, has the right to cancel the lease without further
obligation on the part of the lessee upon giving thirty days'
written notice to the lessor at least thirty days prior to the last
day of the succeeding month;
(B) That the lease is considered canceled without further obligation on the part of the lessee if the Legislature or the
federal government fails to appropriate sufficient funds therefor
or otherwise acts to impair the lease or cause it to be canceled;
and
(C) That the lease is considered renewed for each ensuing
fiscal year during the term of the lease unless it is canceled by
the Commission, Council or governing board before the end of the
then-current fiscal year.
(3) The Commission, Council or institution which is granted
any grounds, buildings, office space or other space leased in
accordance with this section may not order or make permanent
changes of any type thereto, unless the Commission, Council or
governing board, as appropriate, has first determined that the
change is necessary for the proper, efficient and economically
sound operation of the institution. For purposes of this section,
a "permanent change" means any addition, alteration, improvement,
remodeling, repair or other change involving the expenditure of
state funds for the installation of any tangible thing which cannot
be economically removed from the grounds, buildings, office space
or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings,
office or other space, once approved by the Commission, Council or
governing board, may be signed by the Chief Executive Officer of the Commission, Council or institution. Any lease or instrument
exceeding one hundred thousand dollars annually shall be approved
as to form by the Attorney General. A lease or other instrument
for grounds, buildings, office or other space that contains a term,
including any options, of more than six months for its fulfillment
shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules
they consider necessary to carry out the provisions of this
section. The governing boards of Marshall University and West
Virginia University shall promulgate rules pursuant to section six,
article one of this chapter to implement the provisions of this
section.
(s) (w) Purchasing card use may be expanded by the Council,
Commission and state institutions of higher education pursuant to
the provisions of this subsection.
(1) The Council and Commission jointly shall establish
procedures to be implemented by the Council, Commission and any
institution under their respective jurisdictions using purchasing
cards. The procedures shall ensure that each maintains:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with the provisions of article three,
chapter twelve of this code relating to the purchasing card
program; and
(C) Sufficient accounting and auditing procedures for all
purchasing card transactions.
(2) By the first day of November, two thousand four, the
Council and Commission jointly shall present the procedures to the
Legislative Oversight Commission on Education Accountability for
its adoption.
(3) Notwithstanding any other provision of this code to the
contrary, if the Legislative Oversight Commission on Education
Accountability adopts the procedures, the Council, Commission, and
any institution authorized pursuant to subdivision (4) of this
subsection, may use purchasing cards for:
(A) Travel expenses directly related to the job duties of the
traveling employee, including fuel and food; and
(B) Any routine, regularly scheduled payment, including, but
not limited to, utility payments and real property rental fees.
The Council, Commission and each institution, annually by the
thirtieth day of June, shall provide to the State Purchasing
Division a list of all goods or services for which payment was made
pursuant to this provision during that fiscal year.
(4) The Commission and Council each shall evaluate the
capacity of each institution under its jurisdiction for complying
with the procedures established pursuant to subdivision (3) of this
subsection. The Commission and Council each shall authorize expanded use of purchasing cards pursuant to said subdivision for
any such institution it determines has the capacity to comply.
§18B-5-7. Disposition of obsolete and unusable equipment, surplus
supplies and other unneeded materials.
(a) The Commission, the Council and the governing boards shall
dispose of obsolete and unusable equipment, surplus supplies and
other unneeded materials, either by transfer to other governmental
agencies or institutions, by exchange or trade, or by sale as junk
or otherwise. The Commission, the Council and each governing board
shall adopt rules governing and controlling the disposition of all
such equipment, supplies and materials.
(1) At least ten days prior to the disposition, the
Commission, the Council or the governing boards, as applicable,
shall advertise, by newspaper publication as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in the county in which the
equipment, supplies and materials are located, the availability or
sales of such disposable equipment, supplies and materials.
(2) The Commission, the Council or governing boards, as
applicable, may sell the disposable equipment, supplies and
materials, in whole or in part, at public auction or by sealed bid,
or may transfer, exchange or trade the same to other governmental
agencies or institutions (if by transfer, exchange or trade, then without advertising), in whole or in part, as sound business
practices may warrant under existing circumstances and conditions.
(3) The requirements set forth in subsection (a) of this
section apply to Marshall University and West Virginia University
relating only to those items of obsolete and unusable equipment,
surplus supplies and other unneeded materials that exceed five
thousand dollars in recorded net book value. Marshall University
and West Virginia University may dispose of obsolete and unusable
computers and computer-related equipment pursuant to the provisions
of section two, article three of this chapter.
(b) The Commission, Council or governing board, as
appropriate, except for Marshall University and West Virginia
University, shall report semiannually annually to the Legislative
Auditor, all sales of commodities made during the preceding six
months.
(1) The report shall include a description of the commodities
sold, the name of the buyer to whom each commodity was sold, and
the price paid by the buyer.
(2) Marshall University and West Virginia University shall
report biennially to the Legislative Auditor the total sales of
commodities made during the preceding biennium along with the total
recorded net book value of such commodities.
(c) The proceeds of sales or transfers shall be deposited in the State Treasury to the credit on a pro rata basis of the fund or
funds from which the purchase of the particular commodities or
expendable commodities was made. The Commission, Council or
governing board, as appropriate, may charge and assess fees
reasonably related to the costs of care and handling with respect
to the transfer, warehousing, sale and distribution of state
property that is disposed of or sold pursuant to the provisions of
this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The governing boards of Marshall University and West
Virginia University each shall ensure the fiscal integrity of its
operations using best business and management practices.
(1) The practices include at least the following:
(A) Complying with Generally Accepted Accounting Principles of
the Governmental Accounting Standards Board (GAAP); and the
Generally Accepted Government Auditing Standards of the Government
Accountability Office (GAGAS);
(B) Operating without material weakness in internal controls
as defined by GAAP, GAGAS and, where applicable, the Office of
Management and Budget (OMB) Circular A-133;
(C) Maintaining annual audited financial statements with an
unqualified opinion;
(D) Presenting annual audited financial statements to the respective governing board;
(E) Maintaining quarterly financial statements certified by
the chief financial officer of the institution; and
(F) Implementing best practices from Sarbanes-Oxley, or
adopting the applicable tenets of Sarbanes-Oxley as best practices.
(2) Marshall University, West Virginia University and the
research corporation of each:
(A) Shall comply with the OMB Circular A-133 annual grant
award audit requirements; and
(B) Is exempt from the provisions of section fourteen, article
four, chapter twelve of this code.
(3) Within thirty days of the completion of the financial
audit report, the governing boards of Marshall University and West
Virginia University each shall furnish to the Commission, the
Legislative Oversight Commission on Education Accountability, and
the Joint Committee on Government and Finance copies of the annual
audited financial statements.
(a) (b) The Commission or Council, as appropriate, shall
ensure the fiscal integrity of any electronic process conducted at
its offices or at any institution and at all other institutions
using best business and management practices.
(b) (c) Marshall University, West Virginia University, the
Council and the Commission each shall implement a process whereby, to the maximum extent practicable, employees of Marshall
University, West Virginia University, the Council, Commission and
any state institution all other state institutions of higher
education receive their wages via electronic transfer or direct
deposit.
(c) (d) Notwithstanding the provisions of section ten-a,
article three, chapter twelve of this code, and except as otherwise
provided in this subsection, the amount of any purchase made with
a purchasing card used by the Council, the Commission or any other
state institution of higher education may not exceed five thousand
dollars.
(1) Subject to approval of the purchasing division of the
department of administration Auditor, any emergency payment and any
routine, regularly scheduled payment, including, but not limited
to, utility payments, contracts and real property rental fees, may
exceed this amount limit by an amount to be determined by the
Auditor.
(2) The Council, Commission or and any state institution of
higher education may use a purchasing card for travel expenses
directly related to the job duties of the traveling employee.
Where approved by the Auditor, such expenses may exceed five
thousand dollars by an amount to be determined by the Auditor.
Traveling expenses may include registration fees and airline and other transportation reservations, if approved by the
administrative head president of the institution. Traveling
expenses may not include fuel or food purchases except, the state
institutions of higher education known as Marshall University and
West Virginia University may include in traveling expenses the
purchase of fuel and food.
(3) The state institutions known as Marshall University and
West Virginia University each shall maintain one purchasing card
for use only in a situation declared an emergency by the
institution's president. The Council, Commission and each
institution all other institutions shall maintain one purchase card
for use only in and for situations a situation declared an
emergency by the president of the institution and approved by the
appropriate chancellor. Such Emergencies may include, but are not
limited to, partial or total destruction of a campus facility; loss
of a critical component of utility infrastructure; heating,
ventilation or air condition failure in an essential academic
building; loss of campus road, parking lot or campus entrance; or
a local, regional, or national emergency situation that has a
direct impact on the campus.
(d) (e) Notwithstanding the provisions of section ten-f,
article three, chapter twelve of this code, or any other provision
of this code or law to the contrary, by the thirtieth day of June, two thousand four the Auditor shall accept any receiving report
submitted in a format utilizing electronic media. and from the
effective date of this section The Auditor shall conduct any audit
or investigation of the Council, Commission or any institution at
its own expense and at no cost to the Council, Commission or
institution.
(e) The Legislature finds that an emergency exists, and,
therefore, by the first day of July, two thousand three, the
Commission shall file an emergency legislative
(f) The Council and the Commission each shall maintain a rule
in accordance with the provisions of article three-a, chapter
twenty-nine-a of this code. The rule shall provide for
institutions individually or cooperatively to maximize their use of
any of the following purchasing practices that are determined to
provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) (g) Each institution shall establish a consortium with at
least one other institution, in the most cost-efficient manner
feasible, to consolidate the following operations and student
services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and
disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for
consolidation as determined by the Council or Commission.
(g) (h) An institution may charge a fee to each institution
for which it provides a service or performs an operation. The fee
rate shall be in the best interest of both the institution being
served and the providing institution, as approved by the Council
and Commission.
(h) (i) Any community and technical college, college and
university may provide the services authorized by this section for
the benefit of any governmental body or public or private
institution.
(i) Commencing with the two thousand four fall academic term,
each
(j) Each institution shall reduce strive to minimize its
number of low-enrollment sections of introductory courses. To the
maximum extent practicable, institutions shall use distance learning to consolidate the course sections. Marshall University,
West Virginia University, the Council and Commission shall report
the progress of the reduction to reductions as requested by the
Legislative Oversight Commission on Education Accountability. by
the first day of December, two thousand four
(j) (k) An institution shall use its natural resources and
alternative fuel resources to the maximum extent feasible. The
institution may:
(1) May supply the resources for its own use and for use by
any other institution; The institution may
(2) May supply the resources to the general public at fair
market value; An institution shall
(3) Shall maximize all federal or grant funds available for
research regarding alternative energy sources; and may
(4) May develop research parks to further the purpose of this
section and to expand the economic development opportunities in the
state.
(k) (l) Any cost-savings realized or fee procured or retained
by an institution pursuant to implementation of the provisions of
this section shall be is retained by the institution.
(l) In assuring the fiscal integrity of processes implemented
under this section, at a minimum, the Commission has the following
responsibilities:
(1) To conduct a performance audit of the policies, procedures
and results of the procurement of goods and service by the state
institutions of higher education;
(2) To make progress reports on the implementation of this
section to the Legislative Oversight Commission on Education
Accountability throughout the two thousand three interim meetings
period;
(3) To make a comprehensive report to the Legislative
Oversight Commission on Education Accountability by the first day
of December, two thousand three, on the result of the performance
audit, together with any recommendations for additional actions
that might be taken to improve the efficiency, effectiveness and
economy of the administrative operations of the state institution
of higher education, and the Commission.
(m) The provisions of subsection (b) of this section do not
apply to the state institutions known as Marshall University and
West Virginia University. Each is authorized, but not required, to
comply with the provisions of subsections (f), (g) and (h) of this
section.
(1) The governing boards of Marshall University and West
Virginia University, respectively, each shall promulgate a rule on
purchasing procedures pursuant to the provisions of section six,
article one of this chapter. Neither institution is subject to the rules required by said subsection (f).
(2) If either governing board elects to implement the
provisions of said subsection (g), the following conditions apply:
(A) The governing board makes the determination regarding any
additional operation or service which is appropriate for
consolidation without input from the Council or Commission;
(B) The governing board sets the fee charged to any
institution for which it provides a service or performs an
operation. The fee rate shall be in the best interest of both the
institution being served and the providing institution, but it is
not subject to approval by the Council or Commission; and
(C) The governing board may not implement the provisions of
this subdivision in a manner which supercedes the requirements
established in section twelve, article three-c of this chapter.
(m) The Commission shall report annually to the Legislative
Oversight Commission on Education Accountability regarding any
savings achieved by implementing the provisions of this section.
§18B-5-10. Medical professional liability insurance and risk
management functions.
(a) The Legislature finds that, while recent reforms have
helped to address the rising costs and limited availability of
medical malpractice and risk management insurance in West Virginia,
the state's doctoral-granting research universities and their medical schools continue to face significant challenges related to
the cost and operation of insurance and risk management programs.
(b) The Legislature further finds that the availability of
cost-efficient insurance and risk management programs is essential
to the long-term financial integrity and viability of these
universities and their medical and other health professional
schools.
(c) It is the responsibility of the Legislature to make the
best use of available resources and to assure the availability of
high quality medical education to meet the needs of the citizens of
the state.
(d) Therefore, to aid the medical and other health
professional schools in meeting these goals and objectives, the
following program is authorized:
(1) Upon the agreement of the West Virginia State Board of
Risk and Insurance Management, the health professionals schools
under the jurisdiction of the Governing Boards of Marshall
University, West Virginia University, and the West Virginia School
of Osteopathic Medicine, respectively, may participate, separately,
in a self-insurance retention program in conjunction with the state
insurance program administered by the West Virginia State Board of
Risk and Insurance Management to provide medical professional
liability coverage to its health care professionals and students.
(2) In administering the self-insurance retention program,
each governing board has the authority to administer, manage and/or
settle its own medical professional liability insurance claims.
(e) Notwithstanding the provisions of article twelve, chapter
twenty-nine of this code, the West Virginia State Board of Risk and
Insurance Management is hereby authorized and empowered to enter
into separate agreements with the health professionals schools
under the jurisdiction of the Governing Boards of Marshall
University, West Virginia University, and the West Virginia School
of Osteopathic Medicine, respectively, to develop and implement a
self-insurance retention program for medical professional liability
insurance.
(f) Prior to the implementation of any self-insurance
retention program, the Governing Boards of Marshall University,
West Virginia University, and the West Virginia School of
Osteopathic Medicine, respectively, shall submit the proposed
program plan to the state Insurance Commissioner for review:
(1) The review shall include, but is not limited to, claims
handling procedures, investment policies, and reserving practices.
(2) A governing board may not implement a plan until it has
been reviewed by the state Insurance Commissioner.
(g) The Insurance Commissioner and Board of Risk and Insurance
Management each may promulgate an emergency rule as necessary pursuant to the provisions of article three, chapter twenty-nine-a
of this code, to specify further the requirements of self-insurance
retention programs under this section.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education
institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for
each school term for the different classes or categories of
students enrolling at each state institution of higher education
under its jurisdiction and may include among the tuition and fees
any one or more of the following as defined in section one-b of
this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue
account for each of the following classifications of fees:
(1) All tuition and required educational and general fees
collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees
collected to support existing systemwide and institutional debt service and future systemwide and institutional debt service,
capital projects and campus renewal for educational and general
facilities.
(4) Subject to any covenants or restrictions imposed with
respect to revenue bonds payable from such accounts, an institution
may expend funds from each such special revenue account for any
purpose for which funds were collected within that account
regardless of the original purpose for which the funds were
collected.
(c) The purposes for which tuition and fees may be expended
include, but are not limited to, health services, student
activities, recreational, athletic and extracurricular activities.
Additionally, tuition and fees may be used to finance a student's
attorney to perform legal services for students in civil matters at
the institutions: Provided, That the legal services are limited
only to those types of cases, programs or services approved by the
administrative head of the institution where the legal services are
to be performed.
(d) The Commission and Council jointly shall propose a rule
for legislative approval in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code to govern the
fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the Commission and Council jointly shall file the rule
required by subsection (d) of this section as an emergency rule
pursuant to the provisions of article three-a, chapter
twenty-nine-a of this code, subject to the prior approval of the
Legislative Oversight Commission on Education Accountability.
(f) The schedule of all tuition and fees, and any changes
therein, shall be entered in the minutes of the meeting of the
appropriate governing board and the board shall file with the
Commission or Council, or both, as appropriate, and the Legislative
Auditor a certified copy of such schedule and changes.
(g) The boards shall establish the rates to be charged
full-time students, as defined in section one-b of this article,
who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit
hours in a regular term shall have their fees reduced pro rata
based upon one twelfth of the full-time rate per credit hour and
graduate students taking fewer than nine credit hours in a regular
term shall have their fees reduced pro rata based upon one ninth of
the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other
nontraditional time periods shall be prorated based upon the number
of credit hours for which the student enrolls in accordance with
the above provisions.
(h) All fees are due and payable by the student upon
enrollment and registration for classes except as provided in this
subsection:
(1) The governing boards shall permit fee payments to be made
in installments over the course of the academic term. All fees
shall be paid prior to the awarding of course credit at the end of
the academic term.
(2) The governing boards also shall authorize the acceptance
of credit cards or other payment methods which may be generally
available to students for the payment of fees. The governing
boards may charge the students for the reasonable and customary
charges incurred in accepting credit cards and other methods of
payment.
(3) If a governing board determines that a student's finances
are affected adversely by a legal work stoppage, it may allow the
student an additional six months to pay the fees for any academic
term. The governing board shall determine on a case-by-case basis
if the finances of a student are affected adversely.
(4) The Commission and Council jointly shall propose a rule in
accordance with the provisions of article three-a, chapter
twenty-nine-a of this code, defining conditions under which an
institution may offer tuition and fee deferred payment plans
through the institution or through third parties.
(5) An institution may charge interest or fees for any
deferred or installment payment plans.
(i) In addition to the other fees provided in this section,
each governing board may impose, collect and distribute a fee to be
used to finance a nonprofit, student-controlled public interest
research group if the students at the institution demonstrate
support for the increased fee in a manner and method established by
that institution's elected student government. The fee may not be
used to finance litigation against the institution.
(j) Institutions shall retain tuition and fee revenues not
pledged for bonded indebtedness or other purposes in accordance
with the tuition rule proposed by the Commission and Council
jointly pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and
fees;
(2) Allow institutions to charge different tuition and fees
for different programs;
(3) Provide that a board of governors may propose to the
Commission, Council or both, as appropriate, a mandatory auxiliary
fee under the following conditions:
(A) The fee shall be approved by the Commission, Council or
both, as appropriate, and either the students below the senior
level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more
than ten percent;
(C) The fee may be used only to replace existing state funds
subsidizing auxiliary services such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy
shall be reduced annually by the amount of money generated for the
institution by the fees. All state subsidies for the auxiliary
services shall cease five years from the date the mandatory
auxiliary fee is implemented;
(E) The Commission, Council or both, as appropriate, shall
certify to the Legislature by the first day of October in the
fiscal year following implementation of the fee, and annually
thereafter, the amount of fees collected for each of the five
years;
(4) Establish methodology, where applicable, to ensure that,
within the appropriate time period under the compact, community and
technical college tuition rates for community and technical college
students in all independently accredited community and technical
colleges will be commensurate with the tuition and fees charged by
their peer institutions.
(k) A penalty may not be imposed by the Commission or Council
upon any institution based upon the number of nonresidents who attend the institution unless the Commission or Council determines
that admission of nonresidents to any institution or program of
study within the institution is impeding unreasonably the ability
of resident students to attend the institution or participate in
the programs of the institution. The institutions shall report
annually to the Commission or Council on the numbers of
nonresidents and such other enrollment information as the
Commission or Council may request.
(l) Tuition and fee increases of the governing boards, except
for the governing boards of the state institutions of higher
education known as Marshall University and West Virginia
University, are subject to rules adopted by the Commission and
Council jointly pursuant to this section and in accordance with the
provisions of article three-a, chapter twenty-nine-a of this code.
(1) A Subject to the provisions of subdivision (4) of this
subsection, a governing board of an institution under the
jurisdiction of the Commission may propose tuition and fee
increases of up to nine and one-half percent for undergraduate
resident students for any fiscal year. The nine and one-half
percent total includes the amount of increase over existing tuition
and fees, combined with the amount of any newly established,
specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction of the Council may propose tuition and fee increases of up to four
and three quarters percent for undergraduate resident students for
any fiscal year. The four and three-quarters percent total
includes the amount of increase over existing tuition and fees,
combined with the amount of any newly established, specialized fee
which may be proposed by a governing board.
(3) The Commission or Council, as appropriate, shall examine
individually each request from a governing board for an increase.
(4) The governing boards of Marshall University and West
Virginia University, as these provisions relate to the state
institutions of higher education known as Marshall University and
West Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident
students to the maximum allowed by this section without seeking
approval from the Commission; and
(B) Set tuition and fee rates for post-baccalaureate resident
students and for all nonresident students, including establishing
regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition
and fee rates of the administratively linked institution known as
Marshall Community and Technical College, the administratively
linked institution known as the Community and Technical College at
West Virginia University Institute of Technology and the regional campuses known as West Virginia University Institute of Technology
and West Virginia University at Parkersburg.
(5) Any proposed tuition and fee increase for state
institutions of higher education other than the state institutions
of higher education known as Marshall University and West Virginia
University requires the approval of the Commission or Council, as
appropriate. In determining whether to approve or disapprove deny
the governing board's request, the Commission or Council shall
determine the progress the institution has made toward meeting the
conditions outlined in this subdivision and shall make this
determination the predominate factor in its decision. The
Commission or Council shall consider the degree to which each
institution has met the following conditions:
(A) Has maximized resources available through nonresident
tuition and fee charges to the satisfaction of the Commission or
Council;
(B) Is consistently achieving the benchmarks established in
the compact of the institution pursuant to the provisions of
article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for
post-secondary education and the statewide compact established in
articles one and one-a of this chapter;
(D) Is implementing the efficiency measures required by section nine, article five of this chapter;
(E) (D) Has demonstrated to the satisfaction of the Commission
or Council that an increase will be used to maintain high-quality
programs at the institution;
(F) (E) Has demonstrated to the satisfaction of the Commission
or Council that the institution is making adequate progress toward
achieving the goals for education established by the southern
regional education board; and
(G) (F) To the extent authorized, will increase by up to five
percent the available tuition and fee waivers provided by the
institution. The increased waivers may not be used for athletics.
(2) (6) This section does not require equal increases among
institutions or require any level of increase at an institution.
(3) (7) The Commission and Council shall report to the
Legislative Oversight Commission on Education Accountability
regarding the basis for each approval or denial as determined using
the criteria established in subdivision (1) (5) of this subsection.
(4) For fiscal year two thousand five only, a governing board
of any institution under the jurisdiction of the Commission may
increase tuition and fees for undergraduate resident students by
one and one-half percent greater than the amount authorized by the
Commission pursuant to the provisions of this section.
(m) The amount of fees assessed immediately prior to the effective date of this act under the provisions of this article
relating to a higher education resource fee, a faculty improvement
fee, a medical education fee, a health professions fee and a
student activities fee are included in the appropriate tuition or
fees classifications established under subsection (a) of this
section.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers
for students in undergraduate studies at institutions under its
jurisdiction entitling recipients to waiver of tuition, capital and
other fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the governing
boards of Marshall University and West Virginia University,
respectively, for the state institutions of higher education known
as Marshall University and West Virginia University, are subject to
the provisions of section six-a of this article;
(b) A For the governing boards of state institution
institutions of higher education other than the state institutions
of higher education known as Marshall University and West Virginia
University, the following conditions apply:
(1) An institution may not have in effect at any time a number
of undergraduate fee waivers which exceeds five percent of the
number of full-time equivalent undergraduate students registered during the fall semester of the immediately preceding academic
year.
(b) (2) Each undergraduate fee waiver entitles the recipient
thereof to attend a designated state institution of higher
education without payment of the tuition, capital and other fees as
may be prescribed by the governing board and is for a period of
time not to exceed eight semesters of undergraduate study.
(c) (3) The governing board shall make rules pursuant to the
provisions of section six, article one of this chapter, governing
the award of undergraduate fee waivers; the issuance and
cancellation of certificates entitling the recipients to the
benefits thereof; the use of the fee waivers by the recipients; and
the rights and duties of the recipients with respect to the fee
waivers. These rules may not be inconsistent with the provisions
of this section.
(d) (4) The awarding of undergraduate fee waivers shall be
entered in the minutes of the meetings of the governing board.
(e) (5) Students enrolled in an administratively linked
community and technical college shall be awarded a proportionate
share of the total number of undergraduate fee waivers awarded by
a governing board. The number to be awarded to students of the
community and technical college is based upon the full-time
equivalent enrollment of that institution.
§18B-10-6. Fee waivers - Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate
study by the provisions of section five of this article, each
governing board periodically may establish fee waivers for study in
graduate and professional schools under its jurisdiction, including
medicine and dentistry, entitling the recipients to waiver of
tuition, capital, and other fees, subject to the following
conditions and limitations:
(a) West Virginia University may not have in effect at any
time graduate and professional school fee waivers in a number which
exceeds ten percent of the number of full-time equivalent graduate
and professional students registered during the corresponding fall
semester, spring semester and summer term of the immediately
preceding academic year. In addition to the above ten percent, all
graduate assistants employed by West Virginia university shall be
granted a fee waiver. Graduate and professional fee waivers
established by the governing boards of Marshall University and West
Virginia University, respectively, are subject to the provisions of
section six-a of this article;
(b) For the governing boards of state institutions of higher
education other than the state institutions of higher education
known as Marshall University and West Virginia University, the
following conditions apply:
(1) An institution may not have in effect at any time a number
of graduate and professional school fee waivers which exceeds five
percent of the number of full-time equivalent graduate and
professional students registered during the corresponding fall
semester, spring semester and summer term of the immediately
preceding academic year. In addition to the above five percent,
all graduate assistants employed by these institutions shall be
granted a fee waiver.
(c) (2) Each graduate or professional school fee waiver
entitles the recipient to waiver of the tuition, capital and other
fees as may be prescribed by the governing boards and is for a
period of time not to exceed the number of semesters normally
required in the recipient's academic discipline.
(d) (3) The governing boards shall make rules pursuant to the
provisions of section six, article one of this chapter, governing
the award of graduate and professional school fee waivers; the
issuance and cancellation of certificates entitling the recipients
to the benefits thereof; the use of the fee waivers by the
recipients; and the rights and duties of the recipients with
respect to the fee waivers. These rules may not be inconsistent
with the provisions of this section.
(e) (4) The awarding of graduate and professional school fee
waivers shall be entered in the minutes of the meeting of each governing board.
§18B-10-6a. Undergraduate, graduate and professional fee waivers
- Marshall University and West Virginia University.
(a) Undergraduate fee waivers. --
(1) The governing boards of Marshall University and West
Virginia University, respectively, may establish fee waivers for
students in undergraduate studies at institutions under their
jurisdiction which entitle recipients to waiver of tuition, capital
and other fees, in whole or in part.
(2) Each undergraduate fee waiver is for a period of time not
to exceed eight semesters of undergraduate study.
(3) Each governing board shall promulgate rules pursuant to
the provisions of section six, article one of this chapter to
govern the award of undergraduate fee waivers; the issuance and
cancellation of certificates entitling the recipients to the
benefits thereof; the use of the fee waivers by the recipients; and
the rights and duties of the recipients with respect to the fee
waivers. These rules may not be inconsistent with the provisions
of this section.
(4) The awarding of undergraduate fee waivers shall be entered
in the minutes of the meetings of the governing board.
(5) Students enrolled in an administratively linked community
and technical college shall be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing
board. The number to be awarded to students of the community and
technical college is based upon the full-time equivalent enrollment
of that institution.
(b) Graduate and professional school fee waivers. --
(1) In addition to the fee waivers authorized for
undergraduate study by subsection (a) of this section, the
governing boards of Marshall University and West Virginia
University, respectively, each may establish fee waivers for study
in the graduate and professional schools under its jurisdiction,
including medicine and dentistry, which entitle the recipients to
waiver of tuition, capital, and other fees, in whole or in part.
(2) Each graduate or professional school fee waiver entitles
the recipient to waiver of the tuition, capital, and other fees, in
whole or in part, as may be prescribed by the governing board and
is for a period of time not to exceed the number of semesters
normally required in the recipient's academic discipline.
(3) The governing boards each shall promulgate a rule pursuant
to the provisions of section six, article one of this chapter,
governing the award of graduate and professional school fee
waivers; the issuance and cancellation of certificates entitling
the recipients to the benefits thereof; the use of the fee waivers
by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may not be inconsistent
with the provisions of this section.
(4) The awarding of graduate and professional school fee
waivers shall be entered in the minutes of the meeting of each
governing board.
ARTICLE 11. MISCELLANEOUS INSTITUTES AND CENTERS.
§18B-11-7. Regional Brownfield Assistance Centers.
(a) For the purposes of this section, "eligible entities"
means government entities as defined by the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, at 42 U. S. C. §9604 or nonprofit organizations as defined
by the Federal Financial Assistance Management Improvement Act at
31 U. S. C. §6101.
(b) Marshall University and West Virginia University each
shall establish a nonprofit Regional Brownfield Assistance Center
through the corporations set out in article twelve of this chapter
for the purposes of expediting the redevelopment of Brownfield
sites. The Centers shall provide assistance to eligible entities
on state and federal Brownfield programs, secure state and federal
funding for Brownfield redevelopment and acquire property eligible
for state and federal Brownfield assistance.
(b) The Center established by Marshall University serves the
following counties:
(1) McDowell, Mercer, Monroe, Raleigh, Summers and Wyoming;
(2) Cabell, Lincoln, Logan, Mason, Mingo and Wayne;
(3) Boone, Clay, Kanawha and Putnam; and
(4) Braxton, Fayette, Greenbrier, Nicholas, Pocahontas and
Webster.
(c) The Center established by West Virginia University serves
the following counties:
(1) Calhoun, Jackson, Pleasants, Ritchie, Roane, Tyler, Wirt
and Wood;
(2) Brooke, Hancock, Marshall, Ohio and Wetzel;
(3) Barbour, Doddridge, Gilmer, Harrison, Lewis, Marion,
Monongalia, Preston, Randolph, Taylor, Tucker and Upshur; and
(4) Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral,
Morgan and Pendleton.
(d) To accomplish the purposes of this section, the Regional
Brownfield Assistance Centers each have powers and duties
including, but not limited to, the following:
(1) Acquiring property that is eligible for state and federal
Brownfield assistance pursuant to the Small Business Liability
Relief and Brownfields Revitalization Act (Public Law No. 107-118,
185 stat. 2356) and the West Virginia Voluntary Remediation and
Redevelopment Act established in article twenty-two, chapter
twenty-two of this code;
(2) Serving as the developer of property or entering into
partnerships, agreements or other contractual arrangements with
other public or private entities for the purposes of managing and
coordinating remediation and redevelopment activities;
(3) Preparing an inventory of Brownfield sites within their
respective geographic regions by the first day of July, two
thousand six, and updating the inventory of sites annually;
(4) Promoting and coordinating the development of Brownfield
property by providing training and technical assistance on
Brownfield development, grant writing, site assessments,
remediation, community involvement and site preparation to eligible
entities;
(5) Administering federal Brownfield Job Training Grants, the
Brownfields Revolving Fund, and other federal Brownfield financial
assistance programs to assist eligible entities in their Brownfield
development efforts;
(6) Coordinating efforts to secure federal Brownfield funding
by establishing priority rankings and by other necessary measures
to maximize federal financial assistance and eliminate overlapping
competition for federal dollars;
(7) Coordinating the development and publication by the first
day of July, two thousand six, of a website to provide education
and appropriate information on Brownfield development in West Virginia; and
(8) Coordinating with the West Virginia Development Office and
the Department of Environmental Protection to establish and track
key Brownfield economic statistics and conduct Brownfield
conferences, as appropriate.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Legislative findings; creation of Governor's
Commission on Graduate Study in Science, Technology,
Engineering and Mathematics; membership; report.
(a) The Legislature finds that West Virginia ranks below most
other states on key indicators of scientific and technical
capacity, including the number of scientists and engineers who hold
doctoral degrees, the number of science and engineering
post-doctorates and the number of science and engineering graduate
students.
(b) The Legislature further finds that this lack of scientific
and technical capacity places the state at a competitive
disadvantage to other states in terms of generating economic
development and winning research grants, as evidenced by limited
amounts of academic research and development funding, industrial
research and development, small business innovation grant awards,
technology-related start-up companies and the low number of
high-tech jobs.
(c) To address these findings, there is created the Governor's
Commission on Graduate Study in Science, Technology, Engineering
and Mathematics, which may be cited as the STEM Commission, to
address issues which include, but are not limited to, the
following:
(1) Promoting coordination between higher education and K-12
education to create a seamless system of science and mathematics
education and to improve science and mathematics education at all
levels;
(2) Increasing the number of graduate students and
post-doctorates in science, technology, engineering and
mathematics, including the number of women and minority graduate
students in these fields;
(3) Increasing the number of West Virginia undergraduate and
graduate students who receive nationally competitive scholarships
and fellowships in science, technology, engineering and
mathematics, such as Goldwater, Howard Hughes, National Science
Foundation and Udall Fellowships;
(4) Improving the quality of graduate faculty and programs in
science, technology, engineering and mathematics;
(5) Aligning graduate programs in science, technology,
engineering and mathematics with the goals and objectives of the
State EPSCoR Program, the State Science and Technology Advisory Council, the West Virginia Development Office and the Doctoral
Scholars Program of the Southern Regional Education Board; and
(6) Increasing the quantity and enhancing the quality of
academic research, as measured by federal and external expenditures
for research and development.
(d) STEM Commission membership. --
(1) The Commission is comprised of fourteen members selected
as follows:
(A) The Governor or designee, who serves as Chair;
(B) The Chancellor for the Higher Education Policy Commission;
(C) The Director of Academic Affairs of the Higher Education
Policy Commission;
(D) The Executive Director of the State EPSCoR Program;
(E) The Executive Director of the West Virginia Development
Office or designee;
(F) The provosts of Marshall University and West Virginia
University or their designees;
(G) Five members appointed by the Governor who represent
academic, business and research interests; and
(H) The Chair of the House of Delegates Committee on Education
and the Chair of the West Virginia Senate Committee on Education as
ex officio, nonvoting members who serve in an advisory capacity.
(2) At least two of the Governor's appointees are state residents.
(3) The Governor shall make appointments to the Commission so
that members may begin their deliberations no later than the first
day of July, two thousand five.
(e) The Commission shall complete its work and report its
findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate the recommendations, to the
Legislative Oversight Commission on Education Accountability, the
Higher Education Policy Commission and the State EPSCoR Advisory
Council by the first day of December, two thousand five.;
And,
On pages one through seven, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 603--A Bill to repeal
§18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931, as
amended; to repeal §18B-2-1, §18B-2-2 and §18B-2-3 of said code; to
repeal §18B-3-5 and §18B-3-7 of said code; to repeal §18B-5-2d of
said code; to amend and reenact §5-6-4a of said code; to amend and
reenact §5G-1-2 of said code; to amend said code by adding thereto
a new section, designated §12-1-12b; to amend and reenact §12-3-5,
§12-3-6, §12-3-7 and §12-3-8 of said code; to amend and reenact
§18-2-23a of said code; to amend said code by adding thereto a new
section, designated §18-2-24; to amend said code by adding thereto a new section, designated §18A-3-11; to amend and reenact §18A-3A-1
and §18A-3A-2b of said code; to amend said code by adding thereto
a new section, designated §18A-3A-6; to amend and reenact §18B-1-3
and §18B-1-6 of said code; to amend and reenact §18B-1A-2 and
§18B-1A-6 of said code; to amend and reenact §18B-1B-4, §18B-1B-5
and §18B-1B-6 of said code; to amend said code by adding thereto a
new section, designated §18B-1B-13; to amend and reenact §18B-2A-3
and §18B-2A-4 of said code; to amend said code by adding thereto a
new section, designated §18B-2A-7; to amend said code by adding
thereto a new section, designated §18B-2B-9; to amend and reenact
§18B-3-1, §18B-3-2 and §18B-3-3 of said code; to amend said code by
adding thereto a new section, designated §18B-3-4; to amend and
reenact §18B-4-5, §18B-4-5a, §18B-4-6 and §18B-4-7 of said code; to
amend and reenact §18B-5-3, §18B-5-4, §18B-5-7 and §18B-5-9 of said
code; to amend said code by adding thereto a new section,
designated §18B-5-10; to amend and reenact §18B-10-1, §18B-10-5 and
§18B-10-6 of said code; to amend said code by adding thereto a new
section, designated §18B-10-6a; to amend said code by adding
thereto a new section, designated §18B-11-7; and to amend and
reenact §18B-14-11 of said code, all relating to public and higher
education generally; authorizing and requiring certain electronic
requisitions; exempting certain institutions from providing certain
documentation with requisitions; requiring certain institutions to submit certain documentation to Joint Committee on Government and
Finance; expanding certain professional development provisions;
establishing a structure to enhance collaboration between certain
state and regional entities in providing professional development;
requiring certain state and regional entities to ensure
coordination and collaboration in professional development efforts,
and designating certain priorities for professional development;
limiting the circumstances for procuring out-of-state services
regarding certain professional development issues; reconstituting
the Center for Professional Development Board and modifying its
membership, duties and certain required employee provisions;
creating position of Chief Executive Officer; requiring certain
professional development studies and reports; creating the position
of Coordinator of the Principals Academy; prohibiting the required
attendance of certain employees at certain professional development
programs under certain circumstances until date certain;
transferring powers, authorities, responsibilities and duties
between certain entities; definitions; requiring transfer of real
property under certain circumstances from Higher Education Policy
Commission to certain institutions; clarifying requirements for
promulgation of higher education rules; requiring certain
institutions to promulgate certain rules; establishing certain
requirements for rule adoption, validation, enforcement and reporting; limiting certain authorities when rules not adopted;
clarifying legislative intent relating to mission of certain
institutions; limiting Policy Commission jurisdiction, power,
responsibility and authority regarding certain institutions;
modifying Policy Commission duties; modifying salary limit of
Chancellor for Higher Education; specifying limitation of certain
entities on exercising certain authorities and fulfilling certain
responsibilities; modifying responsibility for assigning
institutions' geographic areas of responsibility; modifying
participation requirements and authorization for certain state
institutions of higher education to offer graduate programs under
certain circumstances and expanding the authorized institutions to
offer such programs; modifying certain academic program approval
provisions; transferring to certain institutions authority
regarding certain capital project management and arrangements;
preserving the jurisdiction and authority of certain higher
education entities to manage technology; clarifying authority of
Policy Commission to assess certain fees; specifying when
discharging certain duties requires consultation among various
higher education entities; transferring to certain institutions
authority to approve tuition and fee increases and set standards
for conferring degrees; exempting certain institutions from Policy
Commission approval requirements for executing certain documents, instruments, purchases and procurements; requiring disease
awareness initiatives; requiring study and report of
recommendations relating to higher education personnel issues;
establishing scope of personnel study and charges for
implementation; requiring employee participation; modifying
requirements and authorities regarding delegation of powers by
certain higher education entities; providing for disability
insurance for employees; providing flexibility measures for certain
state institutions of higher education, and providing for future
application of flexibility measures to additional state
institutions of higher education; modifying governance by the
Council for Community and Technical College Education; expanding
and modifying the powers and duties of research, doctoral-granting
public universities and their governing boards; providing
legislative findings, purpose and intent for such expansion and
modification; expanding authority for certain institutions and
establishing parameters and procedures for donating certain surplus
computers and related items; limiting application to certain
institutions of certain surplus item disposal authority; defining
the relationship between the Policy Commission and certain
governing boards and between the West Virginia Council for
Community and Technical College Education and certain governing
boards; establishing and defining the duties of certain governing boards to address state priorities and the goals for post-secondary
education established by the Legislature; defining state
priorities; requiring annual report of progress; expanding penalty
options and jurisdiction of certain parking and vehicle operating
violations for certain institutions; specifying certain acceptable
qualifications for employment as campus police officer at certain
institutions; expanding authority of certain campus police
officers; expanding responsibility of certain institutions to
investigate certain crimes; exempting certain institutions from
requirements to participate in certain cooperative purchasing and
operating arrangements; modifying format and documentation
requirements for acceptance of certain documents by State Auditor;
expanding permissible uses for purchase card; transferring to State
Auditor certain duties regarding purchase cards; transferring to
State Auditor authority to approve certain purchase card payments
designated to exceed the purchase amount limits and to set the
amount by which such payments may exceed the limits; modifying for
certain institutions certain document submission requirements for
travel expense reimbursement; specifying responsibility of certain
institutions for ensuring fiscal integrity of operations;
establishing requirements for implementing best business and
management practices for certain institutions, including certain
required reports; limiting and clarifying certain document approval authority of the Attorney General; authorizing state medical and
health professionals schools to participate in self-insurance
retention programs pursuant to certain conditions; authorizing
state Board of Risk and Insurance Management to enter into
agreements with state medical and health professionals schools to
develop and implement self-insurance retention programs; requiring
plan review by state Insurance Commissioner prior to implementing
self-insurance retention programs; authorizing Insurance
Commissioner and state Board of Risk and Insurance Management to
promulgate emergency rules; expanding discretion of certain
institutions to offer undergraduate and graduate-level fee waivers,
eliminating certain waiver award restrictions and requiring rule
governing waivers; requiring certain institutions to establish a
nonprofit Regional Brownfield Assistance Center; defining
Assistance Center service regions; establishing Assistance Center
powers and duties; providing temporary authorization to engage in
alternative investment options for certain moneys of certain state
institutions of higher education, and including a set expiration
date for such authorization; creating Governor's Commission on
Graduate Study in Science, Technology, Engineering and Mathematics;
establishing membership; assigning charge to Commission; providing
legislative findings and requiring report to Legislative Oversight
Commission on Education Accountability; deleting, repealing and updating certain obsolete provisions; and making technical
corrections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 603, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 603) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 603) takes effect July 1, 2005.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 147, Limiting
purchase of substances used in production of methamphetamine.
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 three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §60A-1-101 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §60A-2-212 of said code be amended and reenacted; that §60A-3-308 of said code be amended and
reenacted; that §60A-4-401 and §60A-4-409 of said code be amended
and reenacted; that §60A-9-4 and §60A-9-5 of said code be amended
and reenacted; and that said code be amended by adding thereto a
new article, designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4,
§60A-10-5, §60A-10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10,
§60A-10-11, §60A-10-12, §60A-10-13, §60A-10-14 and §60A-10-15, all
to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this act:
(a) "Administer" means the direct application of a controlled
substance whether by injection, inhalation, ingestion or any other
means to the body of a patient or research subject by:
(1) A practitioner (or, in his presence, by his authorized
agent); or
(2) The patient or research subject at the direction and in
the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of
or at the direction of a manufacturer, distributor or dispenser.
It does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(c) "Bureau" means the "Bureau of Narcotics and Dangerous Drugs, United States Department of Justice" or its successor
agency.
(d) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V of article two.
(e) "Counterfeit substance" means a controlled substance
which, or the container or labeling of which, without
authorization, bears the trademark, trade name or other identifying
mark, imprint, number or device, or any likeness thereof, of a
manufacturer, distributor or dispenser other than the person who in
fact manufactured, distributed or dispensed the substance.
(f) "Imitation controlled substance" means: (1) A controlled
substance which is falsely represented to be a different controlled
substance; (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled
substance; or (3) a controlled substance or other drug or substance
or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as
to cause a reasonable person to believe that it is a controlled
substance.
(g) "Deliver" or "delivery" means the actual, constructive or
attempted transfer from one person to another of: (1) A controlled
substance, whether or not there is an agency relationship; (2) a
counterfeit substance; or (3) an imitation controlled substance.
(h) "Dispense" means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, including the prescribing, administering,
packaging, labeling or compounding necessary to prepare the
substance for that delivery.
(i) "Dispenser" means a practitioner who dispenses.
(j) "Distribute" means to deliver, other than by administering
or dispensing, a controlled substance, a counterfeit substance or
an imitation controlled substance.
(k) "Distributor" means a person who distributes.
(l) "Drug" means: (1) Substances recognized as drugs in the
official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States or official National Formulary",
or any supplement to any of them; (2) substances intended for use
in the diagnosis, cure, mitigation, treatment or prevention of
disease in man or animals; (3) substances (other than food)
intended to affect the structure or any function of the body of man
or animals; and (4) substances intended for use as a component of
any article specified in clause (1), (2) or (3) of this
subdivision. It does not include devices or their components,
parts or accessories.
(m) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as the State Board of Pharmacy) has found to be and by rule designates
as being the principal compound commonly used or produced primarily
for use and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
manufacture.
(n) "Manufacture" means the production, preparation,
propagation, compounding, conversion or processing of a controlled
substance, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of the
substance or labeling or relabeling of its container, except that
this term does not include the preparation or compounding of a
controlled substance by an individual for his own use or the
preparation, compounding, packaging or labeling of a controlled
substance:
(1) By a practitioner as an incident to his administering or
dispensing of a controlled substance in the course of his
professional practice; or
(2) By a practitioner, or by his authorized agent under his
supervision, for the purpose of, or as an incident to, research,
teaching or chemical analysis and not for sale.
(o) "Marijuana" means all parts of the plant "Cannabis sativa
L.", whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture
or preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.
(p) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin or independently by means of chemical synthesis,
or by a combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or
preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of the
substances referred to in paragraph (1) of this subdivision, but
not including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or
preparation of coca leaves and any salt, compound, isomer, derivative or preparation thereof which is chemically equivalent or
identical with any of these substances, but not including
decocainized coca leaves or extractions of coca leaves which do not
contain cocaine or ecgonine.
(q) "Opiate" means any substance having an addiction-forming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. It does not include, unless
specifically designated as controlled under section two hundred
one, article two of this chapter, the dextrorotatory isomer of 3-
methoxy-n-methylmorphinan and its salts (dextromethorphan). It
does not include its racemic and levorotatory forms.
(r) "Opium poppy" means the plant of the species "Papaver
somniferum L.", except its seeds.
(s) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity.
(t) "Placebo" means an inert medicament or preparation
administered or dispensed for its psychological effect, to satisfy
a patient or research subject or to act as a control in
experimental series.
(u) "Poppy straw" means all parts, except the seeds, of the
opium poppy after mowing.
(v) "Practitioner" means:
(1) A physician, dentist, veterinarian, scientific
investigator or other person licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the course of
professional practice or research in this state.
(2) A pharmacy, hospital or other institution licensed,
registered or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance
in the course of professional practice or research in this state.
(w) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(x) "State", when applied to a part of the United States,
includes any state, district, commonwealth, territory, insular
possession thereof and any area subject to the legal authority of
the United States of America.
(y) "Ultimate user" means a person who lawfully possesses a
controlled substance for his own use or for the use of a member of
his household or for administering to an animal owned by him or by
a member of his household.
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-212. Schedule V.
(a) Schedule V shall consist of the drugs and other substances, by whatever official name, common or usual name,
chemical name, or brand name designated, listed in this section.
(b) Narcotic drugs. -- Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture or
preparation containing any of the following narcotic drugs and
their salts, as set forth below:
(1) Buprenorphine.
(c) Narcotic drugs containing nonnarcotic active medicinal
ingredients. Any compound, mixture or preparation containing any
of the following narcotic drugs or their salts calculated as the
free anhydrous base or alkaloid in limited quantities as set forth
below, which shall include one or more nonnarcotic active medicinal
ingredients in sufficient proportion to confer upon the compound,
mixture or preparation valuable medicinal qualities other than
those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine per 100
milliliters or per 100 grams;
(2) Not more than 100 milligrams of dihydrocodeine per 100
milliliters or per 100 grams;
(3) Not more than 100 milligrams of ethylmorphine per 100
milliliters or per 100 grams;
(4) Not more than 2.5 milligrams of diphenoxylate and not less
than 25 micrograms of atropine sulfate per dosage unit;
(5) Not more than 100 milligrams of opium per 100 milliliters
or per 100 grams;
(6) Not more than 0.5 milligrams of difenoxin and not less
than 25 micrograms of atropine sulfate per dosage unit.
(d) Stimulants. -- Unless specifically exempted or excluded or
unless listed in another schedule, any material, compound, mixture
or preparation which contains any quantity of the following
substances having a stimulant effect on the central nervous system,
including its salts, isomers and salts of isomers:
(1) Pyrovalerone.
(e) Any compound, mixture or preparation containing as its
single active ingredient ephedrine, pseudoephedrine or
phenylpropanolamine, their salts or optical isomers, or salts of
optical isomers except products which are for pediatric use
primarily intended for administration to children under the age of
twelve.
ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND DISPENSING
OF CONTROLLED SUBSTANCES.
§60A-3-308. Prescriptions.
(a) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, no controlled substance in
Schedule II may be dispensed without the written prescription of a
practitioner.
(b) In emergency situations, as defined by rule of the said
appropriate department, board or agency, Schedule II drugs may be
dispensed upon oral prescription of a practitioner, reduced
promptly to writing and filed by the pharmacy. Prescription shall
be retained in conformity with the requirements of section three
hundred six of this article. No prescription for a Schedule II
substance may be refilled.
(c) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, a controlled substance
included in Schedule III or IV, which is a prescription drug as
determined under appropriate state or federal statute, shall not be
dispensed without a written or oral prescription of a practitioner.
The prescription shall not be filled or refilled more than six
months after the date thereof or be refilled more than five times,
unless renewed by the practitioner.
(d) (1) A controlled substance included in Schedule V shall
not be distributed or dispensed other than for a medicinal purpose:
Provided, That buprenorphine shall be dispensed only by
prescription pursuant to subsections (a), (b) and (c) of this
section: Provided, however, That the controlled substances
included in subsection (e), section two hundred twelve, article two
of this chapter shall be dispensed, sold or distributed only by a
physician, in a pharmacy by a pharmacist or pharmacy technician, or healthcare professional.
(2) If the substance described in subsection (e), section two
hundred twelve, article two of this chapter is dispensed, sold or
distributed in a pharmacy:
(A) The substance shall be dispensed, sold or distributed only
by a pharmacist or a pharmacy technician; and
(B) Any person purchasing, receiving or otherwise acquiring
any such substance shall produce a photographic identification
issued by a state or federal governmental entity reflecting his or
her date of birth.
ARTICLE 4. OFFENSES & PENALTIES
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by this act, it is unlawful for any
person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony, and, upon
conviction, may be imprisoned in the state correctional facility
for not less than one year nor more than fifteen years, or fined
not more than twenty-five thousand dollars, or both;
(ii) Any other controlled substance classified in Schedule I,
II or III, is guilty of a felony, and, upon conviction, may be imprisoned in the state correctional facility for not less than one
year nor more than five years, or fined not more than fifteen
thousand dollars, or both;
(iii) A substance classified in Schedule IV, is guilty of a
felony, and, upon conviction, may be imprisoned in the state
correctional facility for not less than one year nor more than
three years, or fined not more than ten thousand dollars, or both;
(iv) A substance classified in Schedule V, is guilty of a
misdemeanor, and, upon conviction, may be confined in jail for not
less than six months nor more than one year, or fined not more than
five thousand dollars, or both: Provided, That for offenses
relating to any substance classified as Schedule V in article ten
of this chapter, the penalties established in article ten of this
chapter apply.
(b) Except as authorized by this act, it is unlawful for any
person to create, deliver, or possess with intent to deliver, a
counterfeit substance.
Any person who violates this subsection with respect to:
(i) A counterfeit substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony, and, upon
conviction, may be imprisoned in the state correctional facility
for not less than one year nor more than fifteen years, or fined
not more than twenty-five thousand dollars, or both;
(ii) Any other counterfeit substance classified in Schedule I,
II, or III, is guilty of a felony, and, upon conviction, may be
imprisoned in the state correctional facility for not less than one
year nor more than five years, or fined not more than fifteen
thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV, is
guilty of a felony, and, upon conviction, may be imprisoned in the
state correctional facility for not less than one year nor more
than three years, or fined not more than ten thousand dollars, or
both;
(iv) A counterfeit substance classified in Schedule V, is
guilty of a misdemeanor, and, upon conviction, may be confined in
jail for not less than six months nor more than one year, or fined
not more than five thousand dollars, or both: Provided, That for
offenses relating to any substance classified as Schedule V in
article ten of this chapter, the penalties established in article
ten of this chapter apply.
(c) It is unlawful for any person knowingly or intentionally
to possess a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of his professional
practice, or except as otherwise authorized by this act. Any
person who violates this subsection is guilty of a misdemeanor, and disposition may be made under section 407, subject to the
limitations specified in said section 407, or upon conviction, such
person may be confined in jail not less than ninety days nor more
than six months, or fined not more than one thousand dollars, or
both: Provided, That notwithstanding any other provision of this
act to the contrary, any first offense for possession of less than
15 grams of marijuana shall be disposed of under said section 407.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver, or possess with intent
to distribute or deliver, an imitation controlled substance; or
(2) To create, possess or sell or otherwise transfer any
equipment with the intent that such equipment shall be used to
apply a trademark, trade name, or other identifying mark, imprint,
number or device, or any likeness thereof, upon a counterfeit
substance, an imitation controlled substance, or the container or
label of a counterfeit substance or an imitation controlled
substance.
(3) Any person who violates this subsection is guilty of a
misdemeanor, and, upon conviction, may be imprisoned in jail for
not less than six months nor more than one year, or fined not more
than five thousand dollars, or both. Any person being eighteen
years old or more, who violates subdivision (1) of this subsection,
and, in so doing distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than
such person, is guilty of a felony, and, upon conviction, may be
imprisoned in the state correctional facility for not less than one
year nor more than three years, or fined not more than ten thousand
dollars, or both.
(4) The provisions of subdivision (1) of this subsection shall
not apply to a practitioner who administers or dispenses a placebo.
§60A-4-409. Prohibited acts -- Transportation of controlled
substances into state; penalties.
(a) Except as otherwise authorized by the provisions of this
code, it shall be unlawful for any person to transport into this
state a controlled substance with the intent to deliver the same or
with the intent to manufacture a controlled substance.
(b) Any person who violates this section with respect to:
(1) A controlled substance classified in Schedule I or II
which is a narcotic drug, shall be guilty of a felony, and, upon
conviction, may be imprisoned in the state correctional facility
for not less than one year nor more than fifteen years, or fined
not more than twenty-five thousand dollars, or both;
(2) Any other controlled substance classified in Schedule I,
II or III, shall be guilty of a felony, and, upon conviction, may
be imprisoned in the state correctional facility for not less than
one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(3) A substance classified in Schedule IV, shall be guilty of
a felony, and, upon conviction, may be imprisoned in the state
correctional facility for not less than one year nor more than
three years, or fined not more than ten thousand dollars, or both;
(4) A substance classified in Schedule V, shall be guilty of
a misdemeanor, and, upon conviction, may be confined in jail for
not less than six months nor more than one year, or fined not more
than five thousand dollars, or both: Provided, That for offenses
relating to any substance classified as Schedule V in article ten
of this chapter, the penalties established in article ten of this
chapter apply.
(c) The offense established by this section shall be in
addition to and a separate and distinct offense from any other
offense set forth in this code.
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-4. Required information.
(a) Whenever a medical services provider dispenses a
controlled substance listed in the provisions of section two
hundred six, article two of this chapter or whenever a prescription
for the controlled substance is filled by: (i) A pharmacist or
pharmacy in this state; (ii) a hospital, or other health care
facility, for out-patient use; or (iii) a pharmacy or pharmacist licensed by the Board of Pharmacy, but situated outside this state
for delivery to a person residing in this state, the medical
services provider, health care facility, pharmacist or pharmacy
shall, in a manner prescribed by rules promulgated by the Board of
Pharmacy under this article, report the following information, as
applicable:
(1) The name, address, pharmacy prescription number and Drug
Enforcement Administration controlled substance registration number
of the dispensing pharmacy;
(2) The name, address and birth date of the person for whom
the prescription is written;
(3) The name, address and Drug Enforcement Administration
controlled substances registration number of the practitioner
writing the prescription;
(4) The name and national drug code number of the Schedule II,
III and IV controlled substance dispensed;
(5) The quantity and dosage of the Schedule II, III and IV
controlled substance dispensed;
(6) The date the prescription was filled; and
(7) The number of refills, if any, authorized by the
prescription.
(b) The Board of Pharmacy may prescribe by rule promulgated
under this article the form to be used in prescribing a Schedule II, III and IV substance if, in the determination of the Board, the
administration of the requirements of this section would be
facilitated.
(c) Products regulated by the provisions of article ten of
this chapter shall be subject to reporting pursuant to the
provisions of this article to the extent set forth in article ten
of this chapter.
(c) (d) Reporting required by this section is not required for
a drug administered directly to a patient or a drug dispensed by a
practitioner at a facility licensed by the state: Provided, That
the quantity dispensed is limited to an amount adequate to treat
the patient for a maximum of seventy-two hours with no greater than
two 72-hour cycles in any fifteen-day period of time.
§60A-9-5. Confidentiality; limited access to records; period of
retention; no civil liability for required reporting.
The information required by this article to be kept by the
State Board of Pharmacy is confidential and is open to inspection
only by inspectors and agents of the State Board of Pharmacy,
members of the West Virginia State Police expressly authorized by
the Superintendent of the West Virginia State Police to have access
to the information, authorized agents of local law-enforcement
agencies as a member of a drug task force, authorized agents of the
federal Drug Enforcement Administration, duly authorized agents of the Bureau for Medical Services and the Workers' Compensation
Commission, duly authorized agents of licensing boards of
practitioners in this state and other states authorized to
prescribe Schedules II, III and IV controlled substances,
prescribing practitioners and pharmacists and persons with an
enforceable court order or regulatory agency administrative
subpoena: Provided, That all information released by the State
Board of Pharmacy must be related to a specific patient or a
specific individual or entity under investigation by any of the
above parties except that practitioners who prescribe controlled
substances may request specific data related to their Drug
Enforcement Administration controlled substance registration number
or for the purpose of providing treatment to a patient. The Board
shall maintain the information required by this article for a
period of not less than five years. Notwithstanding any other
provisions of this code to the contrary, data obtained under the
provisions of this article may be used for compilation of
educational, scholarly or statistical purposes as long as the
identities of persons or entities remain confidential. No
individual or entity required to report under section four of this
article may be subject to a claim for civil damages or other civil
relief for the reporting of information to the Board of Pharmacy as
required under and in accordance with the provisions of this article.
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-1. Short title.
The provisions of this article shall be known and referred to
as the Methamphetamine Laboratory Eradication Act.
§60A-10-2. Purpose; findings.
The Legislature finds:
(a) That the illegal production and distribution of
methamphetamine is an increasing problem nationwide and
particularly prevalent in rural states such as West Virginia.
(b) That methamphetamine is a highly addictive drug that can
be manufactured in small and portable laboratories. These
laboratories are operated by individuals who manufacture the drug
in a clandestine and unsafe manner, often resulting in explosions
and fires that can injure not only the individuals involved but
their families, neighbors, law-enforcement officers and firemen.
(c) That use of methamphetamine can result in fatal kidney and
lung disorders, brain damage, liver damage, blood clots, chronic
depression, hallucinations, violent and aggressive behavior,
malnutrition, disturbed personality development, deficient immune
system and psychosis. Children born to mothers who are abusers of
methamphetamine can be born addicted and suffer birth defects, low
birth weight, tremors, excessive crying, attention deficit disorder and behavior disorders.
(d) That in addition to the physical consequences to an
individual who uses methamphetamine, usage of the drug also
produces an increase in automobile accidents, explosions and fires,
increased criminal activity, increased medical costs due to
emergency room visits, increases in domestic violence, increased
spread of infectious diseases and a loss in worker productivity.
(e) That environmental damage is another consequence of the
methamphetamine epidemic. Each pound of methamphetamine produced
leaves behind five to six pounds of toxic waste. Chemicals and
byproducts that result from the manufacture of methamphetamine are
often poured into plumbing systems, storm drains or directly onto
the ground. Cleanup of methamphetamine laboratories is extremely
resource-intensive, with an average remediation cost of five
thousand dollars.
(f) That it is in the best interest of every West Virginian to
develop a viable solution to address the growing methamphetamine
problem in the State of West Virginia. The Legislature finds that
restricting access to over-the-counter drugs used to facilitate
production of methamphetamine is necessary to protect the public
safety of all West Virginians.
(g) That it is further in the best interests of every West
Virginian to create impediments to the manufacture of methamphetamine by requiring persons purchasing chemicals necessary
to the process to provide identification.
§60A-10-3. Definitions.
In this article:
(a) "Board of Pharmacy" or "Board" means the West Virginia
Board of Pharmacy established by the provisions of article five,
chapter thirty of this code.
(b) "Designated precursor" means any drug product made subject
to the requirements of this article by the provisions of section
seven of this article.
(c) "Distributor" means any person within this state or
another state, other than a manufacturer or wholesaler, who sells,
delivers, transfers or in any manner furnishes a drug product to
any person who is not the ultimate user or consumer of the product;
(d) "Drug product" means a pharmaceutical product that
contains as its single active ingredient ephedrine, pseudoephedrine
or phenylpropanolamine or a substance identified on the
supplemental list provided for in section seven of this article
which may be sold without a prescription and which is labeled for
use by a consumer in accordance with the requirements of the laws
and rules of this state and the federal government.
(e) "Ephedrine" means ephedrine, its salts or optical isomers
or salts of optical isomers.
(f) "Manufacturer" means any person within this state who
produces, compounds packages or in any manner initially prepares
for sale or use any drug product or any such person in another
state if they cause the products to be compounded, packaged or
transported into this state.
(g) "Phenylpropanolamine" means phenylpropanolamine, its
salts, optical isomers and salts of optical isomers.
(h) "Pseudoephedrine" means pseudoephedrine, its salts,
optical isomers and salts of optical isomers.
(i) "Precursor" means any substance which may be used along
with other substances as a component in the production and
distribution of illegal methamphetamine.
(j) "Pharmacist" means an individual currently licensed by
this state to engage in the practice of pharmacy and pharmaceutical
care as defined in subsection (t), section one-b, article fifty,
chapter thirty of this code.
(k) "Pharmacy" means any drugstore, apothecary or place within
this state where drugs are dispensed and sold at retail or display
for sale at retail and pharmaceutical care is provided outside of
this state where drugs are dispensed and pharmaceutical care is
provided to residents of this state.
(l) "Pharmacy counter" means an area in the pharmacy
restricted to the public where controlled substances are stored and housed and where controlled substances may only be sold,
transferred or dispensed by a pharmacist or pharmacy technician.
(m) "Pharmacy technician" means a registered technician who
meets the requirements for registration as set forth in article
five, chapter thirty of this code.
(n) "Retail establishment" means any entity or person within
this state who sells, transfers or distributes goods, including
over-the-counter drug products, to an ultimate consumer.
(o) "Schedule V" means the schedule of controlled substances
set out in section two hundred twelve, section two of this chapter.
(p) "Single active ingredient" means those ingredients listed
on a drug product package as the only active ingredient in over-
the-counter medication or identified on the Schedule maintained by
the Board of Pharmacy as being primarily used in the illegal
production and distribution of methamphetamine.
(q) "Superintendent of the State Police" or "Superintendent"
means the Superintendent of the West Virginia State Police as set
forth in section five, article two, chapter fifteen of this code.
(r) "Wholesaler" means any person within this state or another
state, other than a manufacturer, who sells, transfers or in any
manner furnishes a drug product to any other person in this state
for the purpose of being resold.
§60A-10-4. Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of
methamphetamine or another controlled substance; offenses;
exceptions; penalties.
(a) Any person who within any thirty-day period knowingly
purchases, receives or otherwise possesses more than three packages
of a drug product containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine or more than nine
grams of ephedrine, pseudoephedrine or phenylpropanolamine in any
form shall be guilty of a misdemeanor and, upon conviction, shall
be confined in a jail for not more than one year, fined not more
than one thousand dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person convicted of a second or subsequent violation
of the provisions of said subsection or a statute or ordinance of
the United States or another state which contains the same
essential elements shall be guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for
not less than one nor more than five years, fined not more than
twenty-five thousand dollars, or both.
(c) The provisions of subsection (a) of this section shall not
apply to:
(1) Drug products which are for pediatric use primarily
intended for administration to children under the age of twelve;
(2) Drug products which have been determined by the Board of
Pharmacy to be in a form which is unamenable to being used for the
manufacture of methamphetamine;
(3) Persons lawfully possessing drug products in their
capacities as distributors, wholesalers, manufacturers,
pharmacists, pharmacy technicians, health care professionals or
persons possessing such drug products pursuant to a valid
prescription;
(d) Notwithstanding any provision of this code to the
contrary, any person who knowingly possesses any amount of
ephedrine, pseudoephedrine, phenylpropanolamine or other designated
precursor with the intent to use it in the manufacture of
methamphetamine or who knowingly possesses a substance containing
ephedrine, pseudoephedrine or phenylpropanolamine or their salts,
optical isomers or salts of optical isomers in a state or form
which is, or has been altered or converted from the state or form
in which these chemicals are, or were, commercially distributed
shall be guilty of a felony and, upon conviction, shall be confined
in a state correctional facility for not less than two nor more
than ten years, fined not more than twenty-five thousand dollars,
or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor
of drug products containing as their single active ingredient ephedrine, pseudoephedrine, phenylpropanolamine, their salts or
optical isomers or salts of optical isomers or other designated
precursor shall obtain a registration annually from the State Board
of Pharmacy as described in section six of this article. Any such
pharmacy, wholesaler, manufacturer or distributor shall keep
complete records of all sales and transactions as provided in
section eight of this article. The records shall be gathered and
maintained pursuant to legislative rule promulgated by the Board of
Pharmacy.
(2) Any drug products possessed without a registration as
provided in this section are subject to forfeiture upon conviction
for a violation of this section.
(3) In addition to any administrative penalties provided by
law, any violation of this subsection is a misdemeanor, punishable
upon conviction by a fine in an amount not more than ten thousand
dollars.
§60A-10-5. Restrictions on the sale, transfer or delivery of
certain drug products; penalties.
(a) No pharmacy or individual may display, offer for sale or
place a drug product containing as its single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine or other
designated precursor where the public may freely access the drug
product. All such drug products or designated precursors shall be placed behind a pharmacy counter where access is restricted to a
pharmacist, a pharmacy technician or other pharmacy employee.
(b) All storage of drug products regulated by the provisions
of this section shall be in a controlled and locked access location
that is not accessible by the general public and shall maintain
strict inventory control standards and complete records of quantity
of the product maintained in bulk form.
(c) No pharmacy shall sell, deliver or provide any drug
product regulated by the provisions of this section to any person
who is under the age of eighteen.
(d) If a drug product regulated by the provisions of this
section is transferred, sold or delivered, the individual, pharmacy
or retail establishment transferring, selling or delivering the
drug product shall require the person purchasing, receiving or
otherwise acquiring the drug product to:
(1) Produce a government-issued photo identification showing
his or her date of birth; and
(2) Sign a form containing the information set forth in
subsection (b), section eight of this article and attesting to the
validity of such information. Any person who knowingly makes a
false representation or statement pursuant to the requirements of
this section shall be guilty of a misdemeanor and, upon conviction,
be confined in a jail for not more than six months, fined not more than five thousand dollars, or both.
(e) This section does not apply to drug products that are
dispensed pursuant to a prescription, are pediatric products
primarily intended for administration, according to label
instructions, to children under twelve years of age.
(f) Any violation of this section is a misdemeanor, punishable
upon conviction by a fine in an amount not more than ten thousand
dollars.
§60A-10-6. Registration to sell, manufacture or distribute
products; rule-making authority.
The State Board of Pharmacy shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to require that every
wholesaler, manufacturer or distributor of any drug product
containing as their single active ingredient ephedrine or
pseudoephedrine or a substance identified on the supplemental list
provided for in section seven of this article shall obtain a
registration and permit issued by the State Board of Pharmacy to
sell, distribute or transfer the product containing as their single
active ingredient ephedrine, pseudoephedrine or
phenylpropanolamine.
§60A-10-7. Restricted products; rule-making authority.
(a) On or before the first day of July, two thousand five, the Board of Pharmacy shall promulgate emergency and legislative rules
pursuant to the provision of article three, chapter twenty-nine-a
of this code to implement a program wherein the Board of Pharmacy
shall consult with the Superintendent of the State Police in
identifying drug products which are a designated precursor, in
addition to those that contain as their single active ingredient
ephedrine, pseudoephedrine or phenylpropanolamine, that are
commonly being used in the production and distribution of
methamphetamine. Those drug products which the Superintendent of
the State Police have demonstrated by empirical evidence are
commonly used in the manufacture of methamphetamine shall be added
to a supplemental list of controlled substances listed in
subsection (e), section two hundred twelve, article two of this
chapter and shall be subject to all of the restrictions of this
article. These rules established pursuant to this section shall
include:
(1) A process whereby pharmacies are made aware of all drug
products that contain as their single active ingredient ephedrine,
pseudoephedrine and phenylpropanolamine that will be listed as a
Schedule V substance and must be sold, transferred or dispensed
from behind a pharmacy counter;
(2) A process whereby pharmacies and retail establishments are
made aware additional drug products added to Schedule V that are required to be placed behind the pharmacy counter for sale,
transfer or distribution can be periodically reviewed and updated.
(b) At any time after the first day of July, two thousand
five, the Board of Pharmacy, upon the recommendation of the
Superintendent of the State Police, shall promulgate emergency and
legislative rules pursuant to the provision of article three,
chapter twenty-nine-a of this code to implement an updated
supplemental list of products containing the controlled substances
ephedrine, pseudoephedrine or phenylpropanolamine as an active
ingredient or any other drug used as a precursor in the manufacture
of methamphetamine, which the Superintendent of the State Police
has demonstrated by empirical evidence is being used in the
manufacture of methamphetamine. This listing process shall comport
with the requirements of subsection (a) of this section.
§60A-10-8. Reporting requirements; confidentiality.
(a) Whenever there is a sale, retail, transfer or distribution
of any drug product referred to in subsection (e), section two-
hundred twelve, article two of this chapter or another designated
precursor, the pharmacist or pharmacy technician making the sale,
transfer or distribution shall report the following information for
inclusion in the central repository established pursuant to article
nine of this chapter:
(1) The date of the transaction;
(2) The name, address and driver's license or state-issued
identification number of the person; and
(3) The name, the quantity of packages and total gram weight
of the product or products purchased, received or otherwise
acquired.
(b) The information required by this section shall be the
property of the state and a pharmacy shall have no duty to retain
a copy of the information in any format once the information has
been reported to the Board of Pharmacy as required by this section.
§60A-10-9. Persons mandated to report suspected injuries related
to methamphetamine production; failure to report; penalty.
(a) When any medical, dental or mental health professional,
Christian Science practitioner, religious healer or emergency
medical services personnel has reason to believe that an injury is
the direct result of exposure to the production of methamphetamine
such person shall immediately, and not more than forty-eight hours
after such suspicion arises, report the circumstances or cause a
report to be made to a state, county or local law-enforcement
agency.
(b) Any person required by this section to report a suspected
methamphetamine-related injury who knowingly and intentionally
fails to do so or knowingly and intentionally prevents another
person acting reasonably from doing so shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than one hundred dollars or imprisoned in jail not more than ten
days, or both fined and imprisoned.
§60A-10-10. Authority of the Superintendent of the State Police to
leverage grant funds.
The Superintendent of the State Police is encouraged to
leverage available grant funds from individuals, foundations,
corporations, the federal government, governmental agencies and
other organizations or institutions, make and sign any agreement to
and perform any act that may be necessary to effectuate these
grants. The grant funds shall be dedicated toward a drug court, to
provide training programs to state and local prosecutors and law-
enforcement agents for the investigation and prosecution of
methamphetamine offenses and to enhance funding available to jails.
§60A-10-11. Reporting to the Legislative Oversight Commission on
Health and Human Resources Accountability.
On or before the first day of December, two thousand five, the
Superintendent of the West Virginia State Police shall submit a
report including findings, conclusions and recommendations,
together with drafts of any legislation necessary, to improve the
effectiveness of a reduction in illegal methamphetamine production
and distribution to the Legislative Oversight Commission on Health
and Human Resources Accountability for consideration.
§60A-10-12. Exposure of children to methamphetamine manufacturing;
penalties.
(a) Any person eighteen years of age or older who knowingly
causes or permits a minor to be present in a location where
methamphetamine is manufactured or attempted to be manufactured is
guilty of a felony and, upon conviction, shall be confined in a
state correctional facility for not less than one nor more than
five years, fined not more than ten thousand dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, the penalty for a violation of said subsection when the
child suffers serious bodily injury as such is defined in the
provisions of section one, chapter eight-b of this code shall be
confined in a state correctional facility for not less than three
nor more than fifteen years, fined not more than twenty-five
thousand dollars, or both.
§60A-10-13. Exposure of first responders to manufacture
methamphetamine; penalties
Any person who as a result of or in the course of unlawfully and
intentionally manufacturing methamphetamine, cause a police
officer, probation officer, humane officer, emergency medical
service personnel, firefighter, state fire marshal or employee,
division of forestry employee, county correctional employee or
state correctional employee, acting in his or her official capacity to ingest, inhale, or be dermally exposed to a chemical, product,
by-product, residue, or substance involved in the manufacture or
attempted manufacture of such controlled substance, without prior
knowledge of such, and thereby causes bodily injury to such
persons, shall be guilty of a felony and, upon conviction thereof,
shall be fined not less than five hundred nor more than five
thousand dollars and confined in a correctional facility for not
less than one year nor more than five years. A violation of this
section shall constitute a separate offense from the manufacture or
attempt to manufacture methamphetamine.
§60A-10-14. Illegal storage of anhydrous ammonia; exceptions.
(a) Any person who stores or conveys anhydrous ammonia in a
container that:
(1) Is not approved by the United States Department of
Transportation to hold anhydrous ammonia; or
(2) Was not constructed to meet state and federal industrial
health and safety standards for holding anhydrous ammonia is guilty
of a felony and, upon conviction, shall be confined in a state
correctional facility for a determinate period not to exceed five
years, fined not more than ten thousand dollars, or both.
(b) The provisions of this section shall not apply to persons
authorized by federal or state law, rule or regulation to handle
and dispose of hazardous waste or toxic substances while engaged in such conduct.
(c) Any damages arising out of the unlawful possession of,
storage of or tampering with anhydrous ammonia equipment shall be
the sole responsibility of the person or persons unlawfully
possessing, storing or tampering with anhydrous ammonia. In no
case shall liability for damages arising out of the unlawful
possession of, storage of or tampering with anhydrous ammonia or
anhydrous ammonia equipment extend to the lawful owner, installer,
maintainer, designer, manufacturer, possessor or seller of the
anhydrous ammonia or anhydrous ammonia equipment, unless such
damages arise out of the acts or omissions of the owner, installer,
maintainer, designer, manufacturer, possessor or seller that
constitute negligent misconduct to abide by the laws regarding
anhydrous ammonia possession and storage.
§60A-10-15. Iodine solution greater than 1.5 percent; prescription
or permit required; offenses; penalties.
(a) A person may offer to sell, sell or distribute an iodine
matrix only:
(1) As a prescription drug, pursuant to a prescription issued
by a veterinarian or physician licensed within the state; or
(2) To a person who is actively engaged in the legal practice
of animal husbandry of livestock, as defined in section eight,
article one, chapter four of this code.
(b) Prescriptions issued under this section:
(1) Shall provide for a specified number of refills;
(2) May be issued by any means authorized by the Board of
Pharmacy; and
(3) May be filled by a person other than the veterinarian or
physician issuing the prescription.
(c) A person offering iodine matrix for sale:
(1) Shall store the iodine matrix so that the public does not
have access to the iodine matrix without the direct assistance or
intervention of a retail employee;
(2) Shall keep a record, which may consist of sales receipts
of each person purchasing iodine matrix; and
(3) Shall, if necessary to ascertain the identity of the
purchaser, ask for proof of identification from the purchaser.
(d) A person engaging in a regulated transaction pursuant to
the provisions of subsection (a) of this section is guilty of a
misdemeanor if he or she offers to sell, sells or distributes an
iodine matrix to a person who:
(1) Does not present a prescription or is not engaged in
animal husbandry, as required under subsection (a) of this section;
or
(2) Is not excepted under subsection (g) of this section.
(e) A person is guilty of a misdemeanor who:
(1) Possesses an iodine matrix without proof of obtaining the
solution in compliance with subsection (a) of this section; or
(2) Offers to sell, sells or distributes an iodine matrix in
violation of said subsection;
(f) The provisions of subdivision (1), subsection (e) of this
section do not apply to:
(1) A chemistry or chemistry-related laboratory maintained by:
(A) A public or private regularly established secondary
school; or
(B) A public or private institution of higher education that
is accredited by a regional or national accrediting agency
recognized by the United States Department of Education:
(2) A veterinarian licensed to practice pursuant to the
provisions of article ten, chapter thirty of this code;
(3) A health care facility; or
(4) A veterinarian, physician, pharmacist, retail distributor,
wholesaler, manufacturer, warehouseman or common carrier, or an
agent of any of these persons who possesses an iodine matrix in the
regular course of lawful business activities.
(g) As used in this section, "iodine matrix" means iodine at
a concentration greater than one and one-half percent, by weight,
in a matrix or solution.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 147--A Bill
to amend and reenact §60A-1-101 of the Code of West Virginia, 1931,
as amended; to amend and reenact §60A-2-212 of said code; to amend
and reenact §60A-3-308 of said code; to amend and reenact §60A-4-
401 and §60A-4-409 of said code; to amend and reenact §60A-9-4 and
§60A-9-5 of said code; and to amend said code by adding thereto a
new article, designated §60A-10-1, §60A-10-2, §60A-10-3, §60A-10-4,
§60A-10-5, §60A-10-6, §60A-10-7, §60A-10-8, §60A-10-9, §60A-10-10,
§60A-10-11, §60A-10-12, §60A-10-13, §60A-10-14 and §60A-10-15, all
relating to limiting the purchase of substances used in the
production of methamphetamine; providing that certain substances
containing ephedrine, pseudoephedrine or phenylpropanolamine, their
salts or optical isomers, or salts of optical isomers are Schedule
V substances; excepting Schedule V penalties from penalties of this
Act; providing legislative findings; defining terms; limiting
access to such substances; providing procedures for purchasing such
substances from pharmacists or pharmacy technicians; providing for
the registration of every wholesaler, manufacturer or distributor
of certain drug products containing such substances; providing for
a supplemental list of drug products used in methamphetamine
production; authorizing of promulgation of rules; adding ephedrine, pseudoephedrine and phenylopropanolamine to controlled substances
subject to controlled substances monitoring; requiring certain
persons to report methamphetamine-related injuries; criminalizing
exposure of children to methamphetamine production; criminalizing
exposure and harm to first responders; creating offense of improper
storage of anhydrous ammonia; allowing the State Police to leverage
grant funds; requiring reporting by the State Police to the
Legislative Oversight Commission on Health and Human Resources; and
providing penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 147, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 147) passed with its House of
Delegates amended title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 194, Relating
to Affordable Housing Trust Fund.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9 of the Code
of West Virginia, 1931, as amended, be amended and reenacted, all
to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 18D. WEST VIRGINIA AFFORDABLE HOUSING TRUST FUND.
§31-18D-5. Housing Trust Fund Board of Directors.
(a) The Affordable Housing Trust Fund has a Board of
Directors, which consists of eleven voting members. The members of
the Board are responsible for administering the Trust Fund.
(b) The Trust Fund Board of Directors consists of:
(1) The Secretary of the Department of Health and Human
Resources, ex officio, or his or her designee;
(2) The Executive Director of the West Virginia Development
Office, ex officio, or his or her designee;
(3) The Executive Director of the West Virginia Housing
Development Fund, ex officio, or his or her designee;
(4) One member who is chosen from the private directors
appointed by the governor to the Board of the West Virginia housing
development fund representative of the manufactured housing sales
industry, with special consideration of three nominees submitted by
the West Virginia Manufactured Housing Association;
(5) One member who is an officer of a corporation or member of
a limited liability company, which is currently licensed to do
business in West Virginia and is engaged in real estate development
representative of the real estate development or real estate sales
industry, with special consideration of three nominees submitted by
the West Virginia Association of Realtors;
(6) Three members who are executive directors or officers of
not-for-profit organizations, which are not affiliated with one another through common management control and which are One member
who is an executive director or an officer of a local, community-
based not-for-profit organization currently licensed to do business
in West Virginia and which have been recognized as is exempt from
federal income tax under Section 501(c)(3) of the Internal Revenue
Code, as amended, codified in 26 U. S. C. §501 (c)(3), and are
organized and operated exclusively for charitable purposes within
the meaning of that section, and in accordance with those purposes,
provide housing assistance to low or moderate income citizens of
this state;
(7) One member representative of the banking industry;
(8) One citizen member who is representative of the population
served by the trust fund; and one One member who is an officer or
member of a municipality or county commission, or his or her
designee;
(9) One member who is an executive director of a public
housing authority operating in a county or municipality in this
state;
(10) One member who is an executive director or officer of a
statewide not-for-profit organization which has as one of its
primary missions the provision of housing assistance to low and
moderate income citizens of this state, currently licensed to do
business in West Virginia and is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended,
codified in 26 U. S. C. §501 (c)(3), and is organized and operated
exclusively for charitable purposes within the meaning of that
section; and
(11) One member representative of the homebuilding industry,
with special consideration of three nominees submitted by the
Homebuilders Association of West Virginia.
(c) Not more than three members, excluding the ex officio
members, shall be appointed from any one congressional district.
Not more than four of the members, excluding the ex officio
members, may belong to the same political party. Except for
initial appointments and midterm special appointments made to fill
irregular vacancies on the Board, members shall be appointed for
terms of three years each. Initial appointments shall consist of
three members whose terms expire after two years, three members
whose terms expire after three years and two members whose terms
expire after four years. Members are eligible for reappointment.
However, no member may serve for more than two consecutive full
terms. Except for midterm special appointments made to fill
irregular vacancies on the Board, appointment terms shall begin on
the first day of July of the beginning year. All appointment
terms, special and regular, end on the thirtieth day of June of the
final year of the term.
(d) All members of the Board except those who serve ex officio
shall be appointed by the Governor, with the advice and consent of
the Senate.
(e) 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 the
vacancy as provided in other cases of vacancy.
(f) The Governor shall designate one of the initial members as
chairperson of the Board. During or after the first meeting of the
Board the Board may select a new chairperson and shall annually
select its chairperson.
(g) The Board shall meet not less than four times during the
fiscal year, and additional meetings may be held upon a call of the
chairperson or of a majority of the members. Board members shall
be reimbursed for sums necessary to carry out responsibilities of
the Board and for reasonable travel expenses to attend Board
meetings. The ex officio members may not be reimbursed by the Fund
for travel expenses to attend Board meetings.
(h) Six members of the Board is a quorum. No vacancy in the
membership of the Board impairs the right of a quorum to exercise
all the rights and perform all the duties of the Board. No action
may be taken by the Board except upon the affirmative vote of at
least six of the members. Action may be taken by the affirmative vote of a majority of members present at a properly noticed and
legally convened meeting of the Board.
§31-18D-6. Powers and responsibilities of the Board.
(a) It is the duty of the The Board to shall manage and
control the Affordable Housing Trust Fund. In order to carry out
the day-to-day management and control of the Trust Fund and
effectuate the purposes of this article, the Board may appoint an
Executive Director and other staff. The Board shall fix the
Executive Director's duties and compensation as well as that of
other staff. The Executive Director and other staff serve at the
will and pleasure of the Board. The Board may provide for staff
payroll and employee benefits in the same manner as the West
Virginia Housing Development Fund provides for its employees.
(b) The members of the Board and its officers are not liable
personally, either jointly or severally, for any debt or obligation
created by the Board.
(c) Members of the Board and its officers and employees shall
be provided insurance coverage by the state's Risk and Insurance
Management Board to the same extent and in the same manner the
coverage is applicable to state government agencies and appointed
state officials and employees. The Board may elect to obtain other
forms of insurance coverage it considers reasonable for its
operations.
(d) The acts of the Board are solely acts of its corporation
and are not those of an agent of the state, nor is any debt or
obligation of the Board a debt or obligation of the state.
(e) The Board shall:
(1) Develop and implement comprehensive policies and programs
for the use of the Trust Fund that ensures the equitable
distribution of moneys from the Trust Fund throughout the various
geographic areas of this state and between urban and rural areas of
this state;
(2) Develop and implement an application and selection system
to identify housing sponsors or providers of affordable housing
developments or programs that qualify to receive assistance from
the Trust Fund for eligible activities;
(3) Provide funds for technical assistance to prospective
applicants;
(4) Monitor services, developments, projects or programs
receiving assistance from the Trust Fund to ensure that the
developments are operated in a manner consistent with this article
and in accordance with the representations made to the Trust Fund
Board by the sponsors of the services, developments, projects or
programs;
(5) Recommend legislation to further its mission of providing
housing for low to moderate income citizens of this state;
(6) Provide funding to increase the capacity of nonprofit
community housing organizations to serve their communities;
(7) Research and study housing needs and potential solutions
to the substandard quality or lack of affordable housing;
(8) Coordinate programs with other entities when doing so
fulfills its mission to provide housing to low to moderate income
citizens of this state;
(9) Convene public meetings to gather information or receive
public comments regarding housing policy or issues;
(10) Distribute available funds pursuant to policies
established by it which may permit the establishment of a permanent
endowment; and
(11) Serve as a clearinghouse for information regarding
housing services and providers within this state.
(f) The West Virginia Housing Development Fund shall provide
office space and staff support services for the Executive 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 and loan
activities of the Board as requested, and shall make the
disbursements of all funds as directed by the Board, and establish
best practices for recipient organizations, for which the West
Virginia Housing Development Fund shall be reasonably compensated, as determined by the Board.
§31-18D-7. Eligible activities; eligible organizations.
(a) The Board shall use the moneys from the Trust Fund to
make, or participate in the making of, loans or grants for eligible
activities that shall include, but not be limited to:
(1) Providing funds for new construction, rehabilitation,
repair or acquisition of housing to assist low or moderate income
citizens including land and land improvements;
(2) Providing matching funds for federal housing moneys
requiring a local or state match;
(3) Providing funds for administrative costs for housing
assistance programs or nonprofit organizations eligible for funding
pursuant to subsection (b) of this section if the grants or loans
provided will substantially increase the recipient's access to
housing funds or increase its capacity to supply affordable
housing;
(4) Providing loan guarantees and other financial mechanisms
to facilitate the provision of housing products or services;
(5) Providing funds for down payments, closing costs,
foreclosure prevention, home ownership counseling and security
bonds which facilitate the construction, rehabilitation, repair or
acquisition of housing by low to moderate income citizens; and
(6) Providing risk underwriting products not provided by private sector entities to facilitate broader accessibility of
citizens to other federal or state housing funds or loan programs.
The products shall be established using professional risk
underwriting standards and separate corporate vehicles may be
created and capitalized by the Trust Fund to provide the products;
and
(7) Providing start-up funds for initial operational expenses
of local government programs to reduce substandard housing or
inappropriate land use patterns.
(b) Organizations eligible for funding from the Trust Fund
include the following: (1) Local governments; (2) local government
housing authorities; (3) nonprofit organizations recognized as
exempt from federal income tax under Section 501(c)(3) of the
Internal Revenue Code, as amended, codified in 26 U. S. C. §501
(c)(3), and which are organized and operated exclusively for
charitable purposes within the meaning of that section, and in
accordance with those purposes provide assistance to low or
moderate income citizens of this state; and (4) regional or
statewide housing assistance organizations that have been
recognized as exempt under Section 501(c)(3) of the Internal
Revenue Code, as amended, and which provide assistance to low and
moderate income or low income citizens of this state.
§31-18D-9. Applications and selection criteria.
(a) The Board shall announce by public notice at least two
periods annually for prospective applicants to submit proposals,
applications or requests for funding. Each period shall be for at
least ninety days duration during each calendar year in which funds
are available from the trust fund. The Board shall approve or deny
properly submitted and completed applications, proposals or
requests within sixty days of their receipt.
(b) The Board shall determine whether each person making an
application, proposal or request for funding is an eligible entity
and approve as many applications, proposals or requests as will
effectively use the available moneys in the trust fund less costs
required to administer the program. In selecting entities to
receive trust fund assistance, the Board shall develop a qualified
allocation and selection plan as often as it considers appropriate
in order to provide affordable housing and improve the capacity of
nonprofit housing entities to supply affordable housing to low and
moderate income citizens of this state. The allocation and
selection plan for each period shall be available for review of
prospective applicants and the general public in sufficient time
for prospective applicants to reasonably prepare an application,
project proposal or request for funding.
(c) (a) No moneys may be expended from the Trust Fund for
projects that discriminate against any buyer or renter because of race, religion, sex, familial status or national origin.
(d) (b) The Board shall forward to the West Virginia Housing
Development Fund for its review and information approved requests,
applications and proposals for funding containing information as is
necessary to permit the West Virginia Housing Development Fund to
carry out its duties under this article.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 194--A Bill
to amend and reenact §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9
of the Code of West Virginia, 1931, as amended, all relating to the
West Virginia Affordable Housing Trust Fund generally; changing the
composition of the Board of Directors of the West Virginia
Affordable Housing Trust Fund by reducing the number of members
appointed representing nonprofit organizations; adding additional
members representing real estate, manufactured housing and
homebuilding entities; reducing the number of votes necessary for
Board action; providing that the West Virginia Housing Development
Fund shall establish best practices for recipients of trust fund
moneys; permitting trust fund moneys to be used for initial
operational expenses of local governmental programs to reduce
substandard housing or inappropriate land use patterns; and eliminating certain restrictions on application procedures for
trust fund moneys.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 194, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 194) passed with its House of
Delegates amended title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 669, Transferring certain election duties
from circuit clerk to clerk of county commission.
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 two, by striking out everything after enacting clause
and inserting in lieu thereof the following:
That §3-1-19, §3-1-20, §3-1-21, §3-1-21a, §3-1-24 and §3-1-25
of the Code of West Virginia, 1931, as amended, be amended and
reenacted; that §3-3-2 and §3-3-11 of said code be amended and
reenacted; that §3-4-10, §3-4-12 and §3-4-12a of said code be
amended and reenacted; that §3-4A-12, §3-4A-13 and §3-4A-13a of
said code be amended and reenacted; that §3-5-7, §3-5-8, §3-5-8a,
§3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and
§3-5-24 of said code be amended and reenacted; that §3-6-4 and §3-
6-4a of said code be amended and reenacted; that §3-9-18 of said
code be amended and reenacted; and that §3-10-6 of said code be
amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-19. Ballot commissioners; selection; duties generally; vacancies.
In each county in the state, the clerk of the county
commission while holding such office, and two persons by him
appointed by him or her, one from each of the two political parties
which cast the largest and second largest number of votes in the
state at the last preceding general election, shall constitute a
board of ballot commissioners. of which board the said The clerk
shall be chairman. It shall be the duty of the clerk of said court
to notify the chairman of the respective county executive
committees of such the two parties, at least five days before
making such appointments, of the time and place of making the same,
and if appointments. If at any time after such notice is given,
and before or on the day so fixed for making such appointments, the
chairman of either of said each of the committees shall designate,
in writing, a member of such party as ballot commissioner. having
the qualifications of a voter, he Each designee shall be appointed
if he or she meets the qualifications of a voter. Ballot
commissioners shall be appointed between the fifteenth and
thirtieth days of January in each year in which a general election
is to be held, for a term of two years beginning on the first day
of February next ensuing. Provided, That in the year one thousand
nine hundred sixty-eight, such ballot commissioners shall be
appointed between the first and the tenth days of February, for a term beginning on the eleventh day of February of said year and
ending on the thirty-first day of January, one thousand nine
hundred seventy. They shall perform the duties of such ballot
commissioners at all general, special and primary elections held in
the county or any magisterial district thereof during their term of
office. A vacancy shall be filled in the same manner as an
original appointment, but immediate notice of a vacancy shall,
where necessary, be deemed compliance with the five-day notice
provision.
§3-1-20. Cards of instructions to voters; sample ballots; posting.
(a) The board of ballot commissioners of each county shall
provide cards of general information which will provide the date of
the election and the hours during which polling places will be
open, instruction for mail-in registrants and first-time voters and
voters' rights and prohibitions against fraud and misrepresentation
and cards of instruction for voters in preparing their ballots and
casting a provisional ballot as prescribed by the Secretary of
State. They shall furnish a sufficient number of cards to the
commissioners of election at the same time they deliver the ballots
for the precinct.
(b) The commissioners of election shall post one instruction
card in each voting booth giving instructions to the voters on how
to prepare the ballots for deposit in the ballot boxes and how to obtain a new ballot in place of one accidentally spoiled.
(c) The commissioners of election shall post one or more other
cards of general information at places inside and outside of the
voting place where voters pass or wait to vote. The commissioners
shall also post the official write-in candidates in the same
locations inside and outside of the voting place.
(d) The ballot commissioners shall have printed, on a
different color paper than the official ballot, ten or more copies
of sample ballots for each voting place for each election. Sample
ballots shall be furnished and posted with the cards of general
information at each voting place.
(e) During the period of early in-person voting, the official
designated to supervise and conduct absentee voting clerk of the
county commission shall post the cards of general information, a
list of official write-in candidates and sample ballots within the
area where absentee voting is conducted.
§3-1-21. Printing of official and sample ballots; number;
packaging and delivery, correction of ballots.
(a) The board of ballot commissioners for each county shall
provide the ballots and sample ballots necessary for conducting
every election for public officers in which the voters of the
county participate.
(b) The persons required to provide the ballots necessary for conducting all other elections are:
(1) The Secretary of State, for any statewide special election
ordered by the Legislature;
(2) The board of ballot commissioners, for any countywide
special election ordered by the county commission;
(3) The Board of Education, for any special levy or bond
election ordered by the Board of Education; or
(4) The municipal board of ballot commissioners, for any
election conducted for or within a municipality except an election
in which the matter affecting the municipality is placed on the
county ballot at a county election. Ballots other than those
printed by the proper authorities as specified in this section
shall not be cast, received or counted in any election.
(c) When paper ballots are used, the total number of regular
official ballots printed shall equal one and one-twentieth times
the number of registered voters eligible to vote that ballot. The
circuit clerk of the county commission shall determine the number
of absentee official ballots.
(d) The number of regular official ballots packaged for each
precinct shall equal the number of registered voters of the
precinct. The remaining regular official ballots shall be packaged
and delivered to the circuit clerk of the county commission who
shall retain them unopened until they are required for an emergency. Each package of ballots shall be wrapped and sealed in
a manner which will immediately make apparent any attempt to open,
alter or tamper with the ballots. Each package of ballots for a
precinct shall be clearly labeled in a manner which cannot be
altered, with the county name, the precinct number and the number
of ballots contained in each package. If the packaging material
conceals the face of the ballot, a sample ballot identical to the
official ballots contained therein shall be securely attached to
the outside of the package or, in the case of ballot cards, the
type of ballot shall be included in the label.
(e) All absentee ballots necessary for conducting absentee
voting in all voting systems shall be delivered to the circuit
clerk of the county commission of the appropriate county not later
than the forty-second day before the election. In counties where
the clerk of the county commission is responsible for conducting
absentee voting, the circuit clerk shall transfer the absentee
ballots to the clerk of the county commission prior to the
beginning of absentee voting. All official ballots in paper ballot
systems shall be delivered to the circuit clerk of the county
commission of the appropriate county not later than twenty-eight
days before the election.
(f) Upon a finding of the board of ballot commissioners that
an official ballot contains an error which, in the opinion of the board, is of sufficient magnitude as to confuse or mislead the
voters, the board shall cause the error to be corrected either by
the reprinting of the ballots or by the use of stickers printed
with the correction and of suitable size to be placed over the
error without covering any other portion of the ballot.
§3-1-21a. Vendors authorized to print ballots; eligibility;
application and certification; denial, suspension and
revocation of authorization; appeal.
(a) The printing of ballots for any election to be held
pursuant to the provisions of this chapter shall be contracted for
with a vendor authorized in accordance with the provisions of this
section.
(b) Any vendor authorized to do business in West Virginia and
in good standing may apply for a certificate of authorization to
print ballots for elections in this state: Provided, That any
individual, partnership, association or corporation who does not
qualify as a resident vendor pursuant to the provisions of section
thirty-seven-a, article three, chapter five-a of this code or who
prints the ballots in a state which prohibits that state or any of
its political subdivisions from contracting with West Virginia
resident vendors for the printing of ballots or which prohibits the
printing of ballots outside of such state, is not eligible to
obtain a certificate of authorization.
(c) (1) Every vendor desiring to print ballots for elections
held pursuant to the provisions of this chapter shall, prior to the
execution of any contract for the printing of ballots with any
state, county, or municipal government, obtain a certificate of
authorization to print ballots.
(2) A certificate of authorization may be obtained by
application to the Secretary of State, upon a form prescribed by
the Secretary of State. which The form shall include a statement
that all printing, packaging and delivery specifications for
ballots set forth in this chapter will be substantially met, and
that the vendor applying for certification is eligible in
accordance with the provisions of this section.
(3) Upon receipt of the completed application, the Secretary
of State shall issue a certificate of authorization to print
ballots, which certificate shall remain in effect for two years
from the date of issuance and may be renewed upon application
therefor: Provided, That the Secretary of State may deny the
application to issue or renew the certificate of authorization, or
may suspend or revoke the certificate of authorization upon a
determination that the vendor has not substantially complied with
the printing, packaging and delivery specifications in the printing
of ballots for any state, county or municipal election, or that the
vendor is not eligible or is no longer eligible to print ballots pursuant to the provisions of this section. The Secretary of State
shall give written notice of any such determination by certified
mail, return receipt requested, to the vendor setting forth the
reason for the suspension, revocation or the denial of the
application or the denial of the renewal thereof. The applicant
may, within sixty days of the receipt of such denial, file a
written appeal with the State Election Commission. The State
Election Commission shall promulgate rules establishing a hearing
process for such appeals.
(d) On or before the second Monday of January of each year,
the Secretary of State shall provide a list of all vendors
authorized to print ballots for state, county and municipal
elections to the clerk of each circuit court county commission of
this state.
§3-1-24. Obtaining and delivering election supplies.
(a) It shall be the duty of the clerk of the county commission
to appoint one or more of the commissioners of election or poll
clerks at each precinct of the county to attend at the offices
office of the clerks clerk of the circuit court and county
commission as the case may be, at least one day before each
election to receive the ballots, ballot boxes, poll books,
registration records and forms and all other supplies and materials
for conducting the election at the respective precincts. The clerks clerk shall take a receipt for the respective materials
delivered to the commissioners of election or poll clerks and shall
file the receipt in their respective offices his or her office. It
shall be the duty of the commissioners or poll clerks to receive
the supplies and materials from the respective clerks clerk and to
deliver them with the seal of all sealed packages unbroken at the
election precinct in time to open the election.
(b) The commissioners or poll clerks, if they perform the
messenger services, shall receive the per diem and mileage rate
prescribed by law for this service.
(c) Ballots shall be delivered in sealed packages with seals
unbroken. For general and special elections the delivered ballots
shall not be in excess of one and one-twentieth times the number of
registered voters in the precinct. For primary elections the
ballots for each party shall be in a separately sealed package
containing not more than one and one-twentieth times the number of
registered voters of each party in the election precinct.
(d) For primary elections one copy of the poll books,
including the written or printed forms for oaths of commissioners
of election and poll clerks, shall be supplied at each voting
precinct for each political party appearing on the primary ballot.
(e) There shall be two ballot boxes for each election precinct
for which a receiving and a counting board of election commissioners have been appointed.
§3-1-25. Supplies by special messenger.
In case any commissioner of election or poll clerk fails to
appear at the offices of the clerks clerk of the county commission
and circuit courts by the close of the clerk's office on the day
prior to any election, the board of ballot commissioners, the
chairman or the circuit clerk of the county commission shall
forthwith dispatch a special messenger to the commissioners of
election of each respective precinct with the ballots, registration
records, ballot boxes, poll books and other supplies for the
precinct. The messenger, if not a county employee, shall be
allowed five dollars for this service. The messenger shall also
receive mileage up to the rate of reimbursement authorized by the
travel management rule of the Department of Administration for each
mile necessarily traveled in the performance of his or her
services. The messenger shall promptly report to the clerks of the
circuit court and clerk of county commission respectively, and file
with the clerks clerk the receipts of the person to whom he or she
delivered the ballots and other supplies and his or her affidavit
stating when and to whom he or she delivered them.
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2. Authority to conduct absentee voting; absentee voting
application; form.
(a) Absentee voting is to be supervised and conducted by the
proper official for the political division in which the election is
held, in conjunction with the ballot commissioners appointed from
each political party, as follows:
(1) For any election held throughout the county, within a
political subdivision or territory other than a municipality, or
within a municipality when the municipal election is conducted in
conjunction with a county election, the clerk of the county
commission; Provided, That if the clerk of the county commission
and the clerk of the circuit court jointly petition the county
commission setting forth their agreement that the clerk of the
circuit court should continue to supervise and conduct the absentee
voting, the county commission shall designate the clerk of the
circuit court to supervise and conduct the absentee voting or
(2) The municipal recorder or other officer authorized by
charter or ordinance provisions to conduct absentee voting, for any
election held entirely within the municipality, or in the case of
annexation elections, within the area affected. The terms "clerk"
or "circuit clerk" "clerk of the county commission" or "official
designated to supervise and conduct absentee voting" used elsewhere
in this article means municipal recorder or other officer in the
case of municipal elections.
(b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general or special election is to
make application in writing in the proper form to the proper
official as follows:
(1) The completed application is to be on a form prescribed by
the Secretary of State and is to contain the name, date of birth
and political affiliation of the voter, residence address within
the county, the address to which the ballot is to be mailed, the
authorized reason, if any, for which the absentee ballot is
requested and, if the reason is illness or hospitalization, the
name and telephone number of the attending physician, the signature
of the voter to a declaration made under the penalties for false
swearing as provided in section three, article nine of this chapter
that the statements and declarations contained in the application
are true, any additional information which the voter is required to
supply, any affidavit which may be required and an indication as to
whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under
the provisions of 42 U. S. C. §1973, et seq., the Uniformed and
Overseas Citizens Absentee Voting Act of 1986, the completed
application may be on the federal postcard application for absentee
ballot form issued under authority of that act; or
(3) For any person unable to obtain the official form for
absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the
proper official, the completed application may be in a form set out
by the voter, provided all information required to meet the
provisions of this article is set forth and the application is
signed by the voter requesting the ballot.
§3-3-11. Preparation, number and handling of absent voters'
ballots.
(a) Absent voters' ballots are to be in all respects like
other ballots. Not less than seventy days before the date on which
any primary, general or special election is to be held, unless a
lesser number of days is provided for in any specific election law
in which case the lesser number of days applies, the clerks of the
circuit courts county commissions of the several counties shall
estimate and determine the number of absent voters' ballots of all
kinds which will be required in their respective counties for that
election. The ballots for the election of all officers, or the
ratification, acceptance or rejection of any measure, proposition
or other public question to be voted on by the voters, are to be
prepared and printed under the direction of the board of ballot
commissioners constituted as provided in article one of this
chapter. The several county boards of ballot commissioners shall
prepare and have printed, in the number they may determine, absent
voters' ballots that are to be printed under their directions as provided in this chapter and those ballots are to be delivered to
the clerk of the circuit court county commission of the county not
less than forty-two days before the day of the election at which
they are to be used. In counties where the clerk of the county
commission is responsible for conducting absentee voting, the
circuit clerk shall transfer the absentee ballots to the clerk of
the county commission prior to the beginning of absentee voting.
(b) The clerk of the county commission official designated to
supervise and conduct absentee voting shall be primarily
responsible for the mailing, receiving, delivering and otherwise
handling of all absent voters' ballots. He or she shall keep a
record, as may be prescribed by the Secretary of State, of all
ballots so delivered for the purpose of absentee voting, as well as
all ballots, if any, marked before him or her and shall deliver to
the commissioner of election a certificate stating the number of
ballots delivered or mailed to absent voters and those marked
before him or her, if any, and the names of the voters to whom
those ballots have been delivered or mailed or by whom they have
been marked, if marked before him or her.
ARTICLE 4. VOTING MACHINES.
§3-4-10. Ballot labels, instructions and other supplies; vacancy
changes; procedure and requirements.
(a) The ballot commissioners of any county in which voting machines are to be used in any election shall cause to be printed
for use in the election the ballot labels for the voting machines
and paper ballots for absentee voting, voting by persons unable to
use the voting machine and provisional ballots or if an electronic
voting system or direct recording election equipment is to be used
in an election, the ballot commissioners shall comply with
requirements of section eleven, article four-a of this chapter.
The labels shall be clearly printed in black ink on clear white
material in a size that will fit the ballot frames. The paper
ballots shall be printed in compliance with the provisions of this
chapter governing paper ballots.
(b) The heading, the names and arrangement of offices and the
printing and arrangement of names of the candidates for each office
indicated must be placed on the ballot for the primary election as
nearly as possible according to the provisions of sections thirteen
and thirteen-a, article five of this chapter and for the general
election according to the provisions of section two, article six of
this chapter: Provided, That the staggering of the names of
candidates in multicandidate races and the instructions to straight
ticket voters prescribed by section two, article six of this
chapter shall appear on paper ballots but shall not appear on
ballot labels for voting machines which mechanically control
crossover voting.
(c) Each question to be voted on must be placed at the end of
the ballot and must be printed according to the provisions of the
laws and regulations rules governing the question.
(d) The ballot labels printed must total in number one and
one-half times the total number of corresponding voting machines to
be used in the several precincts of the county in the election.
All the labels must be delivered to the clerk of the circuit court
county commission at least twenty-eight days prior to the day of
the election. The clerk of the circuit court county commission
shall determine the number of paper ballots needed for absentee
voting and to supply the precincts for provisional ballots and
ballots to be cast by persons unable to use the voting machine.
All required paper ballots shall be delivered to the clerk of the
circuit court county commission at least forty-two days prior to
the day of the election.
(e) When the ballot labels and absentee ballots are delivered,
the clerk of the circuit court county commission shall examine them
for accuracy, assure that the appropriate ballots and ballot labels
are designated for each voting precinct and deliver the ballot
labels to the clerk of the county commission who shall insert one
set in each machine prior to the inspection of the machines as
prescribed in section twelve of this article. The remainder of the
ballot labels for each machine shall be retained by the clerk of the county commission for use in an emergency.
(f) In addition to all other equipment and supplies required
by the provisions of this article, the ballot commissioners shall
cause to be printed a supply of instruction cards, sample ballots
and facsimile diagrams of the voting machine ballot adequate for
the orderly conduct of the election in each precinct in their
county. In addition, they shall provide appropriate facilities for
the reception and safekeeping of the ballots of absent voters and
of challenged voters and of the "independent" voters who shall, in
primary elections, cast their votes on nonpartisan candidates and
public questions submitted to the voters.
§3-4-12. Inspection of machines; duties of county commission,
ballot commissioners and election commissioners; keys and
records relating to machines.
When the clerk of the county commission has completed the
preparation of the voting machines, as provided in the next
preceding section eleven of this article, and not later than seven
days before the day of the election, he or she shall notify the
members of the county commission and the ballot commissioners that
the machines are ready for use. Thereupon the members of the
county commission and the ballot commissioners shall convene at the
office of the clerk, or at such other place wherein the voting
machines are stored, not later than five days before the day of the election, and shall examine the machines to determine whether the
requirements of this article have been met. Any candidate, and one
representative of each political party having candidates to be
voted on at the election, may be present during such the
examination. If the machines are found to be in proper order, the
members of the county commission and the ballot commissioners shall
endorse their approval in the book in which the clerk entered the
numbers of the machines opposite the numbers of the precincts. The
clerk shall then deliver the keys to the voting machines to the
ballot commissioners who shall give a receipt for the keys, which
receipt shall contain identification of such keys. Not later than
one day before the election the election commissioner of each
precinct, who shall have been previously designated by the ballot
commissioners, shall attend at the office of the clerks of the
circuit and clerk of the county commissions of such county
commission to receive the key or keys to the device covering the
registering counters and such other keys as may be necessary for
the operation of the machine in registering votes, and to receive
the other necessary election records, books and supplies required
by law. Such The election commissioners shall receive the per diem
mileage rate prescribed by law for this service. Such The election
commissioners shall give the ballot commissioners a receipt for
such the keys, records, books and supplies. and such The receipt shall contain identification of such the keys. The master key and
all other keys shall remain in the possession of the clerk of the
county commission.
The term "assistance in voting," as used in this section,
means assistance in physically marking the official ballot for a
voter, or reading or directing the voter's attention to any part of
the official ballot, or physically operating the voting machine.
§3-4-12a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at
the offices of the clerks clerk of the county commission and
circuit court by the close of the clerks' offices clerk's office on
the day prior to any election, the board of ballot commissioners,
the chairman thereof shall cause all necessary election records,
books and supplies to be delivered by special messenger in the same
manner and under the same terms and conditions as is provided for
the dispatch of the special messenger under the provisions of
section twenty-five, article one of this chapter.
ARTICLE 4A. ELECTRONIC VOTING SYSTEMS.
§3-4A-12. Ballot label arrangement in vote recording devices;
sealing of devices; record of identifying numbers.
In counties using electronic voting systems utilizing vote
recording devices:
(1) The number of ballot labels printed, where applicable, are to equal one and one-half times the total number of corresponding
vote recording devices to be used in the election. All labels are
to be delivered to the clerk of the county commission at least
thirty-five days prior to the election. The circuit clerk shall
immediately examine the ballot labels for accuracy and assure that
the appropriate ballot labels are designated for each voting
precinct.
(2) The total number of ballot cards printed and the number
packaged for each precinct and the requirements for ballot colors
and packaging are to conform as nearly as possible to the
requirements for paper ballots. Official ballot cards printed and
packaged for the various precincts are to be delivered to the clerk
of the circuit court county commission at least twenty-eight days
prior to the election.
(3) The necessary number of ballot cards, ballot labels,
sample ballots, and other supplies necessary for absentee voting
are to be delivered to the clerk of the county commission at least
forty-two days prior to the election. The clerk shall immediately
check the ballot labels to assure their accuracy and shall place
them in vote recording devices which are clearly designated for the
proper district or party, or both, for the purpose of absentee
voting.
(4) When the ballot labels are delivered to the clerk of the county commission, the clerk shall place them in the vote recording
devices in the proper order. The clerk of the county commission
shall retain the remainder of the ballot labels for each machine
for use in an emergency.
(5) The clerk of the county commission shall then seal the
vote recording devices so as to prevent tampering with ballot
labels, and enter in an appropriate book, opposite the number of
each precinct, the identifying or distinguishing number of the
specific vote recording device or devices to be used in that
precinct.
§3-4A-13. Inspection of ballots and vote recording devices; duties
of county commission, ballot commissioners and election
commissioners; records relating to ballots and vote recording
devices; receipt of election materials by ballot
commissioners.
When the clerk of the county commission has completed the
preparation of the ballots and vote recording devices as provided
in sections eleven, eleven-a and twelve of this article and as
provided in section twenty-one, article one of this chapter, and
not later than seven days before the day of the election, he or she
shall notify the members of the county commission and the ballot
commissioners that the ballots and devices, where applicable, are
ready for use. Thereupon the members of the county commission and the ballot commissioners shall convene at the office of the clerk
or at such other place wherein the vote recording devices, where
applicable, and ballots are stored, not later than five days before
the day of the election, and shall inspect the devices and the
ballots to determine whether the requirements of this article have
been met. Notice of the place and time of such inspection shall be
published, no less than three days prior thereto, as a Class I-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such the publication shall be the county involved. Any
candidate and one representative of each political party on the
ballot may be present during such examination. If the devices,
where applicable, and ballots are found to be in proper order, the
members of the county commission and the ballot commissioners
shall, where applicable, endorse their approval in the book in
which the clerk entered the numbers of the devices opposite the
numbers of the precincts. The vote recording devices and the
ballots shall then be secured in double lock rooms. The county
clerk and the president or president pro tempore of the county
commission shall each have a key. The rooms shall be unlocked only
in their presence and only for the removal of the devices, where
applicable, and the ballots for transportation to the polls. Upon
such removal of the devices and ballots, the county clerk and president or president pro tempore of the county commission shall
certify in writing signed by them that the devices, where
applicable, and packages of ballots were found to be sealed when
removed for transportation to the polls.
Not later than one day before the election the election
commissioner of each precinct who shall have been previously
designated by the ballot commissioners, shall attend at the office
of the clerks of the circuit court and clerk of the county
commission of such county to receive the necessary election
records, books and supplies required by law. Such The election
commissioners shall receive the per diem mileage rate prescribed by
law for this service. Such The election commissioners shall give
the ballot commissioners a sequentially numbered written receipt,
on a printed form, provided by the clerk of the county commission,
for such records, books and supplies. Such The receipt shall be
prepared in duplicate. One copy of the receipt shall remain with
the clerk of the county commission and one copy shall be delivered
to the president or president pro tempore of the county commission.
§3-4A-13a. Supplies by special messenger.
In case any commissioner of election shall fail to appear at
the offices of the clerks clerk of the county commission and
circuit court by the close of the clerks' offices clerk's office on
the day prior to any election, the board of ballot commissioners, the chairman thereof or the circuit clerk of the county commission
shall cause all necessary election records, books and supplies to
be delivered by special messenger in the same manner and under the
same terms and conditions as is provided for the dispatch of the
special messenger under the provisions of section twenty-five,
article one of this chapter.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-7. Filing announcements of candidacies; requirements;
withdrawal of candidates when section applicable.
Any person who is eligible and seeks to hold an office or
political party position to be filled by election in any primary or
general election held under the provisions of this chapter shall
file a certificate of announcement declaring as a candidate for the
nomination or election to the office.
(a) The certificate of announcement shall be filed as follows:
(1) With the Secretary of State, if it be an office or
political position to be filled by the voters of more than one
county;
(2) With the clerk of the circuit court county commission, if
it be for an office to be filled by the voters of a single county
or of a subdivision less than a county;
(3) With the recorder or city clerk if it be for an office to
be filled by the voters of a municipality.
The certificate of announcement shall be filed with the proper
officer not earlier than the second Monday in January next
preceding the primary election day, and not later than the last
Saturday in January next preceding the primary election day, and
must be received before midnight, eastern standard time, of that
day or, if mailed, shall be postmarked by the United States Postal
Service before that hour.
(b) The certificate of announcement shall be in a form
prescribed by the Secretary of State on which the candidate shall
make a sworn statement before a notary public or other officer
authorized to give oaths, containing the following information:
(1) The date of the election in which the candidate seeks to
appear on the ballot;
(2) The name of the office sought; the district, if any; and
the division, if any;
(3) The legal name of the candidate, and the exact name the
candidate desires to appear on the ballot, subject to limitations
prescribed in section thirteen, article five of this chapter;
(4) The county of residence and a statement that the candidate
is a legally qualified voter of that county; and the magisterial
district of residence for candidates elected from magisterial
districts or under magisterial district limitations;
(5) The specific address designating the location at which the candidate resides at the time of filing, including number and
street or rural route and box number, and city, state and zip code;
(6) For partisan elections, the name of the candidate's
political party, and a statement that the candidate is a member of
and affiliated with that political party as is evidenced by the
candidate's current registration as a voter affiliated with that
party, and that the candidate has not been registered as a voter
affiliated with any other political party for a period of sixty
days before the date of filing the announcement;
(7) For candidates for delegate to national convention, the
name of the presidential candidate to be listed on the ballot as
the preference of the candidate on the first convention ballot; or,
a statement that the candidate prefers to remain "uncommitted";
(8) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith;
(9) The words "subscribed and sworn to before me this ______
day of _____________, 19 20____," and a space for the signature of
the officer giving the oath.
The Secretary of State or the board of ballot commissioners,
as the case may be, may refuse to certify the candidacy or remove
the certification of the candidacy upon receipt of a certified copy
of the voter's registration record of the candidate evidencing that
the candidate was registered as a voter in a party other than the one named in the certificate of announcement during the sixty days
immediately preceding the filing of the certificate: Provided,
That unless a signed formal complaint of violation of this section
and the certified copy of the voter's registration record of the
candidate be filed with the officer receiving that candidate's
certificate of announcement no later than ten days following the
close of the filing period, the candidate shall not be refused
certification for this reason.
(c) The certificate of announcement shall be subscribed and
sworn to by the candidate before some officer qualified to
administer oaths, who shall certify the same. Any person who
knowingly provides false information on the certificate is guilty
of false swearing and shall be punished as set forth in section
three, article nine of this chapter.
(d) Any candidate for delegate to a national convention may
change his or her statement of presidential preference by notifying
the Secretary of State by letter received by the Secretary of State
no later than the third Tuesday following the close of candidate
filing. When the rules of the political party allow each
presidential candidate to approve or reject candidates for delegate
to convention who may appear on the ballot as committed to that
presidential candidate, the presidential candidate or the
candidate's committee on his or her behalf may file a list of approved or rejected candidates for delegate, and the Secretary of
State shall list as "uncommitted" any candidate for delegate who is
disapproved by the presidential candidate.
(e) No person shall be a candidate for more than one office or
office division at any election: Provided, That a candidate for an
office may also be a candidate for president of the United States,
for membership on a political party executive committee or for
delegate to a political party national convention. Notwithstanding
the provisions of this section, nothing shall prohibit a candidate
from jointly running for or holding the offices of county clerk and
circuit clerk in those counties which operate a joint clerkship
system.
(f) Any candidate who files a certificate of announcement for
more than one office or division and does not withdraw, as provided
by section eleven, article five of this chapter, from all but one
office prior to the close of the filing period shall not be
certified by the Secretary of State or placed on the ballot for any
office by the board of ballot commissioners.
The provisions of this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-one shall apply to the primary election held in the year one
thousand nine hundred ninety-two and every primary election held
thereafter. The provisions of this section enacted during the regular session of the Legislature in the year one thousand nine
hundred ninety-eight shall apply to the primary election held in
the year two thousand and every primary election held thereafter.
§3-5-8. Filing fees and their disposition.
Every person who becomes a candidate for nomination for or
election to office in any primary election shall, at the time of
filing the certificate of announcement as required in this article,
pay a filing fee as follows:
(a) A candidate for president of the United States, for vice
president of the United States, for United States Senator, for
member of the United States House of Representatives, for Governor
and for all other state elective offices shall pay a fee equivalent
to one percent of the annual salary of the office for which the
candidate announces: Provided, That the filing fee for any
candidate for president or vice president of the United States
shall not exceed two thousand five hundred dollars commencing with
the two thousand four filing period;
(b) A candidate for the office of judge of a circuit court and
judge of a family court shall pay a fee equivalent to one percent
of the total annual salary of the office for which the candidate
announces;
(c) A candidate for member of the House of Delegates shall pay
a fee of one-half percent of the total annual salary of the office and a candidate for State Senator shall pay a fee of one percent of
the total annual salary of the office;
(d) A candidate for sheriff, prosecuting attorney, circuit
clerk, county clerk, assessor, member of the county commission and
magistrate shall pay a fee equivalent to one percent of the annual
salary, excluding any additional compensation or commission of the
office for which the candidate announces. A candidate for county
board of education shall pay a fee of twenty-five dollars. A
candidate for any other county office shall pay a fee of ten
dollars;
(e) Delegates to the national convention of any political
party shall pay the following filing fees:
A candidate for delegate-at-large shall pay a fee of twenty
dollars; and a candidate for delegate from a congressional district
shall pay a fee of ten dollars;
(f) Candidates for members of political executive committees
and other political committees shall pay the following filing fees:
A candidate for member of a state executive committee of any
political party shall pay a fee of twenty dollars; a candidate for
member of a county executive committee of any political party shall
pay a fee of ten dollars; and a candidate for member of a
congressional, senatorial or delegate district committee of any
political party shall pay a fee of five dollars.
Candidates filing for an office to be filled by the voters of
one county shall pay the filing fee to the clerk of the circuit
court county commission and candidates filing for an office to be
filled by the voters of more than one county shall pay the filing
fee to the Secretary of State at the time of filing their
certificates of announcement and no certificate of announcement
shall be received until the filing fee is paid.
All moneys received by such the clerk from such the fees shall
be credited to the general county fund. Moneys received by the
Secretary of State from fees paid by candidates for offices to be
filled by all the voters of the state shall be deposited in a
special fund for that purpose and shall be apportioned and paid by
him or her to the several counties on the basis of population and
that received from candidates from a district or judicial circuit
of more than one county shall be apportioned to the counties
comprising the district or judicial circuit in like manner. When
such moneys are received by sheriffs, it shall be credited to the
general county fund.
§3-5-8a. Nominating petitions as alternatives to filing fees; oath
of impecuniosity required; petition in lieu of payment of
filing fee.
A candidate seeking nomination to any office who is unable to
pay the filing fee may qualify through the following petition process in lieu of payment of the filing fee.
The candidate shall file an oath with the appropriate office
required under section eight of this article stating that he or she
is unable to pay the filing fee due to a lack of financial
resources. Such oath shall be filed not earlier than the second
Monday in January next preceding the primary election day.
Upon receipt of the written oath the receiving officer shall
provide the candidate with in-lieu-of-filing-fee petition forms and
instructions on gathering the required signatures. The number of
required signatures shall be four qualified voters for each whole
dollar of the filing fee: Provided, That the filing fee shall be
waived, in whole and not in part. Only signatures of voters
registered in the county, district or other political division
represented by the office sought may be solicited. Solicitors of
signatures shall also be residents of the county, district or other
geographical entity represented by the office sought: Provided,
however, That for offices to be filled by the voters of more than
one county, separate petition forms shall be used for the
signatures of qualified voters from each county.
No qualified voter forfeits his or her opportunity to vote in
the primary election by signing an in-lieu-of-filing-fee petition.
The candidate may submit a greater number of signatures to
allow for subsequent losses due to invalidity of some signatures. The county clerk of the county commission may not be required to
determine the validity of a greater number of signatures than that
required by this section.
Signatures obtained on an in-lieu-of-filing-fee petition shall
not be counted toward the number of voters required to sign a
nomination certificate in accordance with section twenty-three of
this article.
The candidate shall file all in-lieu-of-filing-fee petitions
with the required number of valid signatures with the county clerk
of the county commission or Secretary of State, as the case may be,
not later than the last date required by law for filing
declarations of candidacies and payment of the filing fee.
The oath and forms required by this section shall be
prescribed by the Secretary of State.
§3-5-9. Certification and posting of candidacies.
By the eighty-fourth day next preceding the day fixed for the
primary election, the Secretary of State shall arrange the names of
all candidates, who have filed announcements with him or her, as
provided in this article, and who are entitled to have their names
printed on any political party ballot, in accordance with the
provisions of this chapter, and shall forthwith certify the same
under his or her name and the lesser seal of the state, and file
the same in his or her office.
Such The certificate of candidates shall show: (1) The name
and residence of each candidate; (2) the office for which he or she
is a candidate; (3) the name of the political party of which he or
she is a candidate; (4) upon what ballot his or her name is to be
printed; and (5) in the case of a candidate for delegate to the
national convention of any political party, the name of the person
the candidate prefers as the presidential nominee of his or her
party, or if he or she has no preference, the word "uncommitted".
The Secretary of State shall post a duplicate of such the
certificate in a conspicuous place in his or her office and keep
same posted until after the primary election.
Immediately upon completion of such certification, the
Secretary of State shall ascertain therefrom the candidates whose
names are to appear on the primary election ballots in the several
counties of the state and shall certify to the clerk of the circuit
court county commission in each county the certificate information
relating to each of the candidates whose names are to appear on the
ballot in such that county. He or she shall transmit such the
certificate to the several clerks by registered or certified mail,
but, in emergency cases, he may resort to other reliable and speedy
means of transmission which may be available so that such
certificates shall reach the several clerks by the seventieth day
next preceding such primary election day.
The provisions of this section shall apply to the primary
election held in the year one thousand nine hundred eighty-six and
every primary election held thereafter.
§3-5-11. Withdrawals; filling vacancies in candidacy; publication.
(a) A candidate who has filed a certificate of announcement
and wishes to withdraw and decline to stand as a candidate for the
office shall file a signed and notarized statement of withdrawal
with the same officer with whom the certificate of announcement was
filed. If such the statement of withdrawal is received not later
than the third Tuesday following the close of candidate filing, the
name of a candidate who files that statement of withdrawal may not
be printed on the ballot. No candidate who files a statement of
withdrawal after that time may have his or her name removed from
the ballot.
(b) Upon request of the candidate's family, the board of
ballot commissioners may remove the name of a candidate who dies
before the ballots are printed. If a candidate dies after the
ballots are printed but before the election, the clerk of the
circuit court county commission shall give a written notice which
shall be posted with the sample ballot at each precinct with the
county to the following effect: "To the voter: (name) of
(residence), a candidate for (office) is deceased."
(c) If after the time is closed for announcing as a candidate there is a vacancy on the ballot caused by failure of any person of
a party to file for each available seat of each available office,
the executive committee of the party for the political division
within which such candidate was to be voted for, or its chair if
the committee fails to act, may fill the vacancy and certify the
candidate named to the appropriate filing officer. Certification
of the appointment by the executive committee or its chair, the
candidate's certificate of announcement, and the filing fee must be
received by the appropriate filing officer as follows: For an
appointment by an executive committee, no later than the second
Friday following the close of filing, for an appointment by its
chair, no later than the third Tuesday following the close of
filing. A candidate appointed to fill a vacancy on the ballot
under this subsection shall have his or her name printed on the
primary ballot for that party.
§3-5-12. Official and sample ballots; color.
There shall be a separate ballot printed on different colored
paper, for each political party participating in the primary
election, and the ballot of no two parties shall may be of the same
color or tint. The Secretary of State shall select and determine
the color of the paper of the ballot of each of the parties, and
shall notify the clerk of the circuit court county commission of
each county thereof, at the time he or she certifies the names of the candidates of the various parties to said the clerk, as herein
provided.
A different color of paper shall be selected and designated by
the Secretary of State for each party. and the The sample ballots
of each party shall be of a different color than the official
ballot and of a different color from one another. and there There
shall be printed across the face of such sample ballot in large
letters the words "sample ballot". and no No sample ballot shall
be voted or counted in any election.
§3-5-13a. Order of offices and candidates on the ballot; uniform
drawing date.
(a) The order of offices for state and county elections on all
ballots within the state shall be as prescribed herein. When the
office does not appear on the ballot in an election, then it shall
be omitted from the sequence. When an unexpired term for an office
appears on the ballot along with a full term, the unexpired term
shall appear immediately below the full term.
NATIONAL TICKET: President (and Vice President in the general
election), United States Senator, member of the United States House
of Representatives
STATE TICKET: Governor, Secretary of State, Auditor,
Treasurer, Commissioner of Agriculture, Attorney General, Justice
of the Supreme Court of Appeals, State Senator, member of the House of Delegates, circuit judge in multicounty districts, family court
judge in multicounty districts, any other multicounty office, state
executive committee
COUNTY TICKET: Circuit judge in single-county districts,
family court judge in single-county districts, clerk of the circuit
court, county commissioner, clerk of the county commission,
prosecuting attorney, sheriff, assessor, magistrate, surveyor,
congressional district executive committee, senatorial district
executive committee in multicounty districts, delegate district
executive committee in multicounty districts
NATIONAL CONVENTION: Delegate to the national convention --
at-large, delegate to the national convention -- congressional
district
DISTRICT TICKET: County executive committee.
(b) Except for office divisions in which no more than one
person has filed a certificate of announcement, the arrangement of
names for all offices shall be determined by lot according to the
following provisions:
(1) On the fourth Tuesday following the close of the candidate
filing, beginning at nine o'clock a. m., a drawing by lot shall be
conducted in the office of the clerk of the circuit court county
commission in each county. Notice of the drawing shall be given on
the form for the certificate of announcement and no further notice shall be required. The clerk of the circuit court county
commission shall superintend and conduct the drawing and the method
of conducting the drawing shall be prescribed by the Secretary of
State.
(2) Except as provided herein, the position of each candidate
within each office division shall be determined by the position
drawn for that candidate individually: Provided, That if fewer
candidates file for an office division than the total number to be
nominated or elected, the vacant positions shall appear following
the names of all candidates for the office.
(3) Candidates for delegate to national convention who have
filed a commitment to a candidate for president shall be listed
alphabetically within the group of candidates committed to the same
candidate for president and uncommitted candidates shall be listed
alphabetically in an uncommitted category. The position of each
group of committed candidates and uncommitted candidates shall be
determined by lot by drawing the names of the presidential
candidates and for an uncommitted category.
(4) A candidate or the candidate's representative may attend
the drawings.
§3-5-18. Disposition of certificates of results.
The certificates of the board of canvassers made pursuant to
the preceding section shall be by them disposed of as follows: One of the certificates showing the votes received by each candidate of
each party for each office to be filled by the voters of a
political division greater than a county, including members of the
State Executive Committee, shall be filed with the Secretary of
State, and by him preserved in his or her office, and a copy
thereof filed in the office of the clerk of the circuit court
county commission of the county of such board, to be preserved by
such the clerk, and which shall be open to public inspection; one
certificate showing the votes received by each candidate of each
party for each office to be filled by the voters of the county or
magisterial district within such county, including members of the
county executive committee, shall be filed with the clerk of the
circuit court county commission, and by him preserved in his or her
office. If requested, the board of canvassers shall furnish to the
county chairman of each political party a certificate showing the
number of votes received by each of the candidates of such party in
the county or any magisterial district therein.
The Secretary of State shall certify, under the seal of the
state, to the clerk of the circuit court county commission of each
county in which a candidate is to be voted for, the name of the
candidate of each political party receiving the highest number of
votes in the political division in which he or she is a candidate,
and who is entitled to have his or her name placed on the official ballot in the general election as the nominee of the party for such
office. The Secretary of State shall also certify in the same
manner the names of all candidates nominated by political parties
or by groups of citizens, not constituting a political party, in
any manner provided for making such nominations in this chapter.
§3-5-19. Vacancies in nominations; how filled; fees.
(a) If any vacancy shall occur in the party nomination of
candidates for office nominated at the primary election or by
appointment under the provisions of section eleven of this article,
the vacancies may be filled, subject to the following requirements
and limitations:
(1) Each appointment made under this section shall be made by
the executive committee of the political party for the political
division in which the vacancy occurs: Provided, That if the
executive committee holds a duly called meeting in accordance with
section nine, article one of this chapter but fails to make an
appointment or fails to certify the appointment of the candidate to
the proper filing officer within the time required, the chairperson
of the executive committee may make the appointment not later than
two days following the deadline for the executive committee.
(2) Each appointment made under this section is complete only
upon the receipt by the proper filing officer of the certificate of
appointment by the executive committee, or its chairperson, as the case may be, the certificate of announcement of the candidate as
prescribed in section seven of this article and, except for
appointments made under subdivision (4), (5), (6) or (7) of this
subsection, the filing fee or waiver of fee as prescribed in
section eight or eight-a of this article. The proper filing
officer is the officer with whom the original certificate of
nomination is regularly filed for that office.
(3) If a vacancy in nomination is caused by the failure of a
candidate to file for an office, or by withdrawal of a candidate no
later than the third Tuesday following the close of candidate
filing pursuant to the provisions of section eleven of this
article, a nominee may be appointed by the executive committee and
certified to the proper filing officer no later than the Thursday
preceding the primary election.
(4) If a vacancy in nomination is caused by the
disqualification of a candidate and the vacancy occurs not later
than eighty-four days before the general election, a nominee may be
appointed by the executive committee and certified to the proper
filing officer not later than seventy-eight days before the general
election. A candidate may be determined ineligible if a written
request is made by an individual with information to show a
candidate's ineligibility to the State Election Commission no later
than ninety-five days before the general election explaining grounds why a candidate is not eligible to be placed on the general
election ballot or not eligible to hold the office, if elected.
The State Election Commission shall review the reasons for the
request. If the commission finds the circumstances warrant the
disqualification of the candidate, the Commission may authorize
appointment by the executive committee to fill the vacancy. Upon
receipt of the authorization a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(5) If a vacancy in nomination is caused by the incapacity of
the candidate and if the vacancy occurs not later than eighty-four
days before the general election, a nominee may be appointed by the
executive committee and certified to the proper filing officer no
later than seventy-eight days before the general election.
(6) If a vacancy in nomination is caused by the withdrawal of
the candidate no later than ninety-eight days before the general
election due to extenuating personal circumstances which will
prevent the candidate from serving in the office if elected and if
the candidate or the chairperson of the executive committee for the
political division applies in writing to the State Election
Commission no later than ninety-five days before the general
election for permission to remove the candidate's name from the
general election ballot, the State Election Commission shall review the reasons for the request. If the Commission finds the
circumstances warrant the withdrawal of the candidate, the
Commission shall authorize appointment by the executive committee
to fill the vacancy. Upon receipt of the authorization, a nominee
may be appointed by the executive committee and certified to the
proper filing officer no later than seventy-eight days before the
general election.
(7) If a vacancy in nomination is caused by the death of the
candidate occurring no later than twenty-five days before the
general election, a nominee may be appointed by the executive
committee and certified to the proper filing officer no later than
twenty-one days following the date of death or no later than
twenty-two days before the general election, whichever date occurs
first.
(b) Except as otherwise provided in article ten of this
chapter, if any vacancy occurs in a partisan office or position
other than political party executive committee, which creates an
unexpired term for a position which would not otherwise appear on
the ballot in the general election, and the vacancy occurs after
the close of candidate filing for the primary election but not
later than eighty-four days before the general election, a nominee
of each political party may be appointed by the executive committee
and certified to the proper filing officer no later than seventy-eight days before the general election. Appointments shall
be filed in the same manner as provided in subsection (a) of this
section, except that the filing fee shall be paid before the
appointment is complete.
(c) When a vacancy occurs in the board of education after the
close of candidate filing for the primary election but not later
than eighty-four days before the general election, a special
candidate filing period shall be established. Candidates seeking
election to any unexpired term for board of education shall file a
certificate of announcement and pay the filing fee to the clerk of
the circuit court county commission no earlier than the first
Monday in August and no later than seventy-seven days before the
general election.
§3-5-23. Certificate nominations; requirements and control;
penalties.
(a) Groups of citizens having no party organization may
nominate candidates for public office otherwise than by conventions
or primary elections. In such the case, the candidate or
candidates, jointly or severally, shall file a declaration with the
Secretary of State if the office is to be filled by the voters of
more than one county, or with the clerk of the circuit court county
commission of the county if the office is to be filled by the
voters of one county or political subdivision thereof; such the declaration to be filed at least thirty days prior to the time of
filing the certificate provided by section twenty-four of this
article: Provided, That the deadline for filing the certificate
for persons seeking ballot access as a candidate for the office of
president or vice president shall be filed not later than the first
day of August preceding the general election. At the time of
filing of such the declaration each candidate shall pay the filing
fee required by law, and if such the declaration is not so filed or
the filing fee so paid, the certificate shall not be received by
the Secretary of State, or clerk of the circuit court county
commission, as the case may be.
(b) The person or persons soliciting or canvassing signatures
of duly qualified voters on such the certificate or certificates,
may solicit or canvass duly registered voters residing within the
county, district or other political division represented by the
office sought, but must first obtain from the clerk of the county
commission credentials which must be exhibited to each voter
canvassed or solicited, which credentials may be in the following
form or effect:
State of West Virginia, County of ................., ss:
This certifies that ..............................., whose
post-office address is ..............................., the holder
of this credential is hereby authorized to solicit and canvass duly registered voters residing in .................. (here place the
county, district or other political division represented by the
office sought) to sign a certificate purporting to nominate
............................ (here place name of candidate heading
list on certificate) for the office of ..........................
and others, at the general election to be held on
..................., 20....
Given under my hand and the seal of my office this
............... day of ........................., 20......
...............................................
Clerk, County Commission of ........... County.
The clerk of each county commission, upon proper application
made as herein provided, shall issue such credentials and shall
keep a record thereof.
(c) The certificate shall be personally signed by duly
registered voters, in their own proper handwriting or by their
marks duly witnessed, who must be residents within the county,
district or other political division represented by the office
sought wherein such the canvass or solicitation is made by the
person or persons duly authorized. Such The signatures need not
all be on one certificate. The number of such signatures shall be
equal to not less than two percent of the entire vote cast at the
last preceding general election for the office in the state, district, county or other political division for which the
nomination is to be made, but in no event shall the number be less
than twenty-five. The number of such signatures shall be equal to
not less than two percent of the entire vote cast at the last
preceding general election for any statewide, congressional or
presidential candidate, but in no event shall the number be less
than twenty-five. Where two or more nominations may be made for
the same office, the total of the votes cast at the last preceding
general election for the candidates receiving the highest number of
votes on each ticket for such the office shall constitute the
entire vote. No signature on such a certificate shall be counted
unless it be that of a duly registered voter of the county,
district or other political division represented by the office
sought wherein such the certificate was presented. It shall be the
duty of those soliciting signatures to read to each voter whose
signature is solicited the statement written on the certificate
which gives notice that no person signing such certificate shall
vote at any primary election to be held to nominate candidates for
office to be voted for at the election to be held next after the
date of signing such certificate.
(d) Such The certificates shall state the name and residence
of each of such the candidates; that he or she is legally qualified
to hold such the office; that the subscribers are legally qualified and duly registered as voters and desire to vote for such the
candidates; and may designate, by not more than five words, a brief
name of the party which such the candidates represent and may adopt
a device or emblem to be printed on the official ballot. All
candidates nominated by the signing of such the certificates shall
have their names placed on the official ballot as candidates, as if
otherwise nominated under the provisions of this chapter.
The Secretary of State shall prescribe the form and content of
the nomination certificates to be used for soliciting signatures.
The content shall include the language to be used in giving written
and oral notice to each voter that signing of the nominating
certificate forfeits that voter's right to vote in the
corresponding primary election.
Offices to be filled by the voters of more than one county
shall use separate petition forms for the signatures of qualified
voters for each county.
(e) The Secretary of State, or the clerk of the circuit court
county commission, as the case may be, may investigate the validity
of such the certificates and the signatures thereon. and if upon
such If upon investigation there may be doubt as to the legitimacy
and the validity of such the certificate, he or she may request the
Attorney General of the state, or the prosecuting attorney of the
county, to institute a quo warranto proceeding against the nominee or nominees by certificate to determine his or their right to such
the nomination to public office, and upon request being made, the
Attorney General or prosecuting attorney shall institute such the
quo warranto proceeding. The clerk of the county commission shall,
at the request of the Secretary of State or the clerk of the
circuit court, compare the information from any certificate to the
county voter registration records in order to assist in determining
the validity of any certificates.
(f) Any person violating the provisions of this section, in
addition to penalties prescribed elsewhere for violation of this
chapter, is guilty of a misdemeanor and, upon conviction, 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, in the
discretion of the court: Provided, That no criminal penalty may be
imposed upon anyone who signs a nomination certificate and votes in
the primary election held after the date the certificate was
signed.
§3-5-24. Filing of nomination certificates; time.
All certificates nominating candidates for office under the
preceding section, including a candidate for the office of
presidential elector, shall be filed, in the case of a candidate to
be voted for by the voters of the entire state or by any
subdivision thereof other than a single county, with the Secretary of State, and in the case of all candidates for county and
magisterial district offices, including all offices to be filled by
the voters of a single county, with the clerk of the circuit court
of the county commission, not later than the day preceding the date
on which the primary election is held. After such that date no
such certificate shall be received by such officers.
ARTICLE 6. CONDUCT AND ADMINISTRATION OF ELECTIONS.
§3-6-4. Late nominations; stickers.
If a nomination to fill a vacancy be is made by a political
party executive committee or, on its failure to so act within the
time prescribed by law, be is made by the chairman of such the
committee, and be certified to the clerk of the circuit court
county commission after the ballots to be used at the ensuing
election shall have been printed, the clerk shall forthwith lay
such certificates before the ballot commissioners who, without
delay, shall prepare, or cause to be prepared, and deliver, or
cause to be delivered, to the election commissioners of each
precinct in which such the candidate is to be voted for, a number
of stickers, containing only the name of such the candidate, at
least equal to the total number of ballots provided for such the
precinct; but no such stickers shall be furnished to or received by
any person except a commissioner of election. It shall be is the
duty of the commissioners holding the election to deliver such stickers to the poll clerks, who shall, in the presence of the
election commissioners, affix one of such the stickers in a careful
manner at the proper place for the name of the candidate, upon each
ballot to be voted at the election, before the poll clerks shall
sign their names on the ballots. Such The stickers may be
delivered to the election officers, by the clerk of the county
court commission, with the ballots, poll books and other supplies.
§3-6-4a. Filing requirements for write-in candidates.
Any eligible person who seeks to be elected by write-in votes
to an office, except delegate to national convention, which is to
be filled in a primary, general or special election held under the
provisions of this chapter, shall file a write-in candidate's
certificate of announcement as provided in this section. No
certificate of announcement may be accepted and no person may be
certified as a write-in candidate for a political party nomination
for any office or for election as delegate to national convention.
(a) The write-in candidate's certificate of announcement shall
be in a form prescribed by the Secretary of State on which the
candidate shall make a sworn statement before a notary public or
other officer authorized to give oaths containing the following
information:
(1) The name of the office sought and the district and
division, if any;
(2) The legal name of the candidate and the first and last
name by which the candidate may be identified in seeking the
office;
(3) The specific address designating the location at which the
candidate resides at the time of filing, including number and
street or rural route and box number and city, state and zip code;
(4) A statement that the person filing the certificate of
announcement is a candidate for the office in good faith; and
(5) The words "subscribed and sworn to before me this ______
day of _____________, ____" and a space for the signature of the
officer giving the oath.
(b) The certificate of announcement shall be filed with the
filing officer for the political division of the office as
prescribed in section seven, article five of this chapter.
(c) The certificate of announcement shall be filed with and
received by the proper filing officer as follows:
(1) Except as provided in subdivisions (2) and (3) of this
subsection, the certificate of announcement for any office shall be
received no later than the close of business on the twenty-first
day before the election at which the office is to be filled;
(2) When a vacancy occurs in the nomination of candidates for
an office on the ballot resulting from the death of the nominee or
from the disqualification or removal of a nominee from the ballot by a court of competent jurisdiction not earlier than the
twenty-first day nor later than the fifth day before the general
election, the certificate shall be received no later than the close
of business on the fifth day before the election or the close of
business on the day following the occurrence of the vacancy,
whichever is later;
(3) When a vacancy occurs in an elective office which would
not otherwise appear on the ballot in the election, but which
creates an unexpired term of one or more years which, according to
the provisions of this chapter, is to be filled by election in the
next ensuing election and the vacancy occurs no earlier than the
twenty-first day and no later than the fifth day before the general
election, the certificate shall be received no later than the close
of business on the fifth day before the election or the close of
business on the day following the occurrence of the vacancy,
whichever is later.
(d) Any eligible person who files a completed write-in
candidate's certificate of announcement with the proper filing
officer within the required time shall be certified by that filing
officer as an official write-in candidate:
(1) The Secretary of State shall, immediately following the
filing deadline, post the names of all official write-in candidates
for offices on the ballot in more than one county and certify the name of each official write-in candidate to the clerks of the
circuit court county commissions of the appropriate counties.
(2) The clerk of the circuit court county commission shall,
immediately following the filing deadline, post the names of all
official write-in candidates for offices on the ballot in one
county and certify and deliver to the clerk of the county
commission and the election officials of the appropriate precincts,
the names of all official write-in candidates and the office sought
by each for statewide, district and county offices on the ballot in
the precinct for which valid write-in votes will be counted and the
names shall be posted at the office where absentee voting is
conducted and at the precincts in accordance with section twenty,
article one of this chapter.
ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-18. Unlawful voting in primary elections; penalties.
Any person voting, in any primary election, any ticket of a
party other than that of which he is registered as a member, and
any election officer receiving the vote of any such person,
knowing, or having reason to believe, that such voter is not a
member of the party the ticket of which he is voting; or who,
having signed or joined in any petition or certificate nominating
any candidate for office, shall, at the primary election to be held
to nominate candidates for the same office, vote at such primary election; shall in each instance be guilty of a misdemeanor, and,
on conviction thereof, shall be fined not more than one thousand
dollars, or be confined in the county jail for not more than one
year, or both, in the discretion of the court.
ARTICLE 10. FILLING VACANCIES.
§3-10-6. Vacancy in office of circuit court clerk.
When a vacancy occurs in the office of clerk of the circuit
court, the circuit court by a majority vote of the judges, or the
chief judge thereof in vacation, shall fill the same by appointment
of a person of the same political party as the officeholder
vacating the office until the next general election, or until the
completion of the term if the term ends on the thirty-first day of
December following the next general election. and the The person
so appointed shall hold office until his or her successor is
elected and qualified. At such the general election, a clerk shall
be elected for the unexpired term if the unexpired term is greater
than one year. The circuit court, or the chief judge thereof in
vacation, shall cause a notice of such the election to be published
prior to such the election as a Class II-0 legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code. and the The publication area for such the
publication shall be the county. If the vacancy occurs no later
than the eighty-fourth day before the primary election held to nominate candidates to be voted for at the general election, at
which any such vacancy is to be filled, candidates to fill such the
vacancy shall be nominated at such the primary election in
accordance with the time requirements and the provisions and
procedures prescribed in section eleven, article five of this
chapter. If the vacancy occurs after the eighty-fourth day before
the primary but not later than the eighty-fourth day before the
general election, they shall be nominated by the county executive
committee in the manner provided in section nineteen, article five
of this chapter, as in the case of filling vacancies in
nominations, and the names of the persons, so nominated and
certified to the clerk of the circuit court county commission of
such the county, shall be placed upon the ballot to be voted at
such the next general election.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 669--A Bill to amend and reenact §3-1-19,
§3-1-20, §3-1-21, §3-1-21a, §3-1-24 and §3-1-25 of the Code of West
Virginia, 1931, as amended; to amend and reenact §3-3-2 and §3-3-11
of said code; to amend and reenact §3-4-10, §3-4-12 and §3-4-12a of
said code; to amend and reenact §3-4A-12, §3-4A-13 and §3-4A-13a of
said code; to amend and reenact §3-5-7, §3-5-8, §3-5-8a, §3-5-9, §3-5-11, §3-5-12, §3-5-13a, §3-5-18, §3-5-19, §3-5-23 and §3-5-24
of said code; to amend and reenact §3-6-4 and §3-6-4a of said code;
to amend and reenact §3-9-18 of said code; and to amend and reenact
§3-10-6 of said code, all relating to the regulation and control of
elections; transferring certain election duties from the circuit
clerk to the clerk of the county commission; removing
unconstitutional provisions regarding nominating petitions;
providing that the county clerk shall assist the Secretary of State
in determining the validity of nominating petitions; and removing
the prohibition on a person signing or joining in any petition or
certificate nominating any candidate for office from voting in a
primary election.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 669, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 669) passed with its House of Delegates amended title.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 735, Relating to cancellation of motor
vehicle agreement.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
§17A-6A-7. Notice provisions.
Notwithstanding any agreement, prior to the termination,
cancellation, nonrenewal or discontinuance of any dealer agreement,
the manufacturer or distributor shall furnish notice of the
termination, cancellation, nonrenewal or discontinuance to the new motor vehicle dealer as follows:
(a) Except as otherwise provided in subdivision (c) or (d)
this subsection section, notice shall be made not less than one
hundred twenty days prior to the effective date of the termination,
cancellation, nonrenewal or discontinuance.
(b) Notice shall be by certified mail with restrictive
delivery to the new motor vehicle dealer principal and shall
contain the following:
(i) (1) A statement of intention to terminate, cancel, not
renew or discontinue the dealer agreement;
(ii) (2) A detailed written statement of all reasons for the
termination, cancellation, nonrenewal or discontinuance. The
statement shall include, at a minimum, a complete explanation of
each reason upon which the manufacturer or distributor relies to
support its proposed action, along with all supporting
documentation which is material to the proposed action and
available to the manufacturer or distributor at the time of
termination, cancellation, nonrenewal or discontinuance; and
(iii) (3) The date on which the termination, cancellation,
nonrenewal or discontinuance takes effect.
(c) Notwithstanding subdivision (a) of this subsection, notice
shall be made not less than thirty days prior to the effective date
of the termination, cancellation, nonrenewal or discontinuance for any of the following reasons:
(i) (1) Insolvency of the new motor vehicle dealer or the
filing of any petition by or against the new motor vehicle dealer
under any bankruptcy or receivership law;
(ii) (2) Failure of the new motor vehicle dealer to conduct
his or her customary sales and service operations during his or her
customary business hours for seven consecutive business days;
(iii) (3) Conviction of the new motor vehicle dealer or its
principal owners of a crime, but only if the crime is punishable by
imprisonment in excess of one year under the law under which the
dealer was convicted or the crime involved theft, dishonesty or
false statement regardless of the punishment;
(iv) (4) Revocation of a motor vehicle dealership license in
accordance with section eighteen, article six of this chapter; or
(v) (5) A fraudulent misrepresentation by the new motor
vehicle dealer to the manufacturer or distributor, which is
material to the dealer agreement.
(d) Notwithstanding subdivision (a) of this subsection, notice
shall be made not less than twelve months prior to the effective
date of a termination, cancellation, nonrenewal or discontinuance
if a manufacturer or distributor discontinues production of the new
motor vehicle dealer's product line or discontinues distribution of
the product line in this state.
(e) Except as provided in subdivision (c) of this subsection,
any motor vehicle dealer who receives a notice of intent to
discontinue, cancel or not renew a dealer agreement may, within a
120-day notice period, file a petition or complaint for a
determination of whether such action is an unfair or prohibited
discontinuation, cancellation or nonrenewal. Dealer agreements and
certificates of appointment shall continue in effect until a final
determination of the issues raised in such petition or complaint by
the motor vehicle dealer. A discontinuance, cancellation or
nonrenewal is unfair if it is:
(1) Not clearly permitted by the dealer agreement;
(2) Not undertaken for good cause; or
(3) Is based on an alleged breach of the franchise agreement
which is not in fact a material and substantial breach.
(f) No replacement dealer shall be named for this point or
location to engage in business and the dealer's agreement shall
remain in effect until a final judgement is entered after all
appeals are exhausted: Provided, That when a motor vehicle dealer
appeals a decision upholding a discontinuation, cancellation or
nonrenewal under subdivisions (f) and (g) of this section, the
dealer agreement shall remain in effect pending exhaustion of all
appeals only if the motor vehicle dealer establishes a likelihood
of success on appeal and that the public interest will not be harmed by keeping the dealer agreement in effect pending entry of
final judgement after such appeal.
(g) If a transfer of ownership is proposed after a notice to
discontinue, cancel or not renew a dealer agreement is received
but, prior to the final determination, including exhaustion of all
appellate remedies of a motor vehicle dealer's complaint or
petition contesting such action, the termination proceedings shall
be stayed, without bond, during the period the transfer is being
reviewed by the manufacturer or distributor. During the period
that the transfer is being reviewed by the manufacturer or
distributor, the dealer agreement shall remain in full force and
effect, and the motor vehicle dealer shall retain all rights and
remedies pursuant to the terms and conditions of the dealer
agreement and applicable law. This shall include, but is not
limited to, all rights of transfer under subdivision (2), section
ten, article six-a, chapter seventeen of this code until such time
as the manufacturer or distributor has accepted or rejected the
proposed transfer. If the proposed transfer is rejected, the motor
vehicle dealer shall retain all of its rights pursuant to section
sixteen of said article to a judicial determination as to whether
the manufacturer or distributor's rejection is in compliance with
the provisions of subdivision (2), section ten of said article and
during the pendency of such judicial proceeding, and any related appellate proceedings, the termination proceedings shall remain
stayed without bond, the dealer agreement shall remain in full
force and effect and the motor vehicle dealer shall retain all
rights and remedies pursuant to the terms and conditions of the
dealer agreement and applicable law including all rights of
transfer. If a transfer is approved by the manufacturer or
distributor or mandated by law, the termination proceedings shall
be dismissed with prejudice as moot.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 735, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 735) passed with its title.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, to take effect from passage, and requested the
concurrence of the Senate in the House of Delegates amendments to
the Senate amendments, as to
Eng. House Bill No. 2777, Making technical changes concerning
High-Tech research zones, parks and technology centers and tax
incentives relating thereto.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page seven, section four, subsection (b), subdivision (1),
by striking out the word "seven" and inserting in lieu thereof the
word "five";
And,
On page eight, section four, subsection (c), after "(4)" by
inserting a comma, striking out the words "of subsection (b)" and
inserting in lieu thereof the words "subsection (b) of this
section".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed House Bill No. 2777, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2777) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2777) takes effect from passage.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 198, Relating to fire
safety standards for bed and breakfast establishments.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section sixteen-c, lines fifty-six through
fifty-eight, by striking out the words "or a portable metal fire
escape ladder in each room and an operable and accessible window
from which to exit each guest room".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 198, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins,
Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Weeks--1.
Absent: None.
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. 198) passed with its title.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 254, Relating to reinsurance
intermediaries.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page eleven, section thee-a, lines forty-one and forty-two,
after the word "worthy" by inserting a comma and the words "as that
term may be defined by the Commissioner in legislative rules
promulgated pursuant to section twelve of this article,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 254, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 254) passed with its title.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 433, Increasing membership
of Environmental Protection Advisory Council.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental Protection Advisory Council.
(a) There is created within the Department of commerce, labor
and environmental resources Environmental Protection the
Environmental Protection Advisory Council. The Environmental
Protection Advisory Council consists of seven eleven members. The
director Secretary serves as an ex officio member of the Council
and as its Chair. The remaining six ten members are appointed by
the Governor. Each member serves for a term of four years and may
be reappointed. Of the members of the council first appointed, two shall be appointed for terms ending on the thirtieth day of June,
one thousand nine hundred ninety-six, and two each for terms ending
one and two years thereafter. Members of the Council serving on
the effective date of this section shall continue to serve until
their terms expire or their successors have been appointed. Of the
four new members of the Council, two shall be appointed for a term
ending on the thirtieth day of June, two thousand eight, and two
shall be appointed for the term ending the thirtieth day of June,
two thousand ten. Vacancies on the Council shall be filled within
sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries
regulated by the division or their trade associations. Two members
shall represent organizations advocating environmental protection.
One member shall represent organizations representing local
governments. One member shall represent public service districts.
Any future appointments to the Council shall be representative of
the following entities. They are:
(1) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the largest
organization representing manufacturing in this state and one
member of the Council shall be appointed from a list of three names
submitted to the Governor by the largest organization representing
the interests of coal producers in this state;
(2) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the largest
organization representing farming interests in this state and one
member of the Council shall be appointed from a list of three names
of registered foresters submitted to the Governor by the largest
organization representing the interests of private owners of forest
land in this state;
(3) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the two largest
organizations representing environmental protection organizations;
(4) One member of the Council shall be appointed from a list
of three names submitted jointly to the Governor by the largest
organizations representing counties and municipalities in this
state;
(5) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the largest
organization representing public service districts in this state;
(6) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the largest
organization representing oil and gas producers in this state;
(7) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the largest
organization representing coal miners in this state; and
(8) One member of the Council shall be appointed from a list
of three names submitted to the Governor by the West Virginia
Wildlife Federation. In making subsequent appointments this
balance of membership shall be maintained.
(c) Appointed Except for state employee and officer members,
appointed members shall be paid 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.
(d) The Council shall meet at least once every quarter and at
the call of the Chair or at the request of any four members of the
Council in writing signed by the members requesting the meeting,
the Chair shall schedule a meeting. At least fifteen days prior to
a regularly scheduled meeting, or ten days in advance of a meeting
called by the Chair, the Secretary shall provide the members of the
Council with an agenda of all matters scheduled for discussion at
the meeting and copies of any rules the Secretary intends to
propose.
(e) The Council shall:
(1) Consult with and advise the Secretary on program and
policy development, problem solving and other appropriate subjects;
(2) Identify and define problems associated with the implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups;
(5) To the extent possible, strive for consensus on the
development of overall environmental policy; and
(6) The Council may, upon a majority vote of the members,
offer suggestions to the Secretary for proposed new or amended
legislative rules;
(6) (7) Provide an annual report to the joint committee on
government and finance on or before the first day of January of
each year relating to its findings with regard to the division's
Department's performance during the previous year. The report will
specifically address the division's performance in accomplishing
the nine ten purposes set forth in subsection (b), section one of
this article.; and
(8) Appoint technical advisory committees as may be necessary
to carry out the provisions of this section.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 433--A Bill to amend and
reenact §22-1-9 of the Code of West Virginia, 1931, as amended,
relating to the Environmental Protection Advisory Council
generally; increasing the membership of the Council to eleven
members; specifying the Governor's power of appointment from named
organizations and entities; making certain procedural changes in
Council activities; allowing Council members to offer rule-making
suggestions to the Secretary upon majority vote of the members; and
authorizing appointment of technical advisory committees which will
serve without compensation.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 433, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Jenkins, Kessler,
Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin
(Mr. President)--33.
The nays were: Hunter--1.
Absent: None.
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. 433) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Foster, Guills, Harrison, Helmick, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--33.
The nays were: Hunter--1.
Absent: None.
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. 433) takes effect July 1, 2005.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 524, Requiring study of state's centralized accounting system.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5A-2-34, to read as
follows:
ARTICLE 2. FINANCE DIVISION.
§5A-2-34. Study of centralized accounting system.
(a) The Legislature finds an examination of administration of
the state's centralized accounting system is warranted to determine
whether improvements are necessary to obtain optimal function and
economical operation of the system, including, but not limited to
whether a transfer of responsibility for administration of the
system is warranted or indicated to reach those ends. It is
therefore the intent of the Legislature that appropriate public
officials conduct a study of the centralized accounting system and
provide the results of the study and any recommendations indicated
for the improvement of the system to the Legislature for its
consideration.
(b) The Secretary of the Department of Administration, the
Secretary of the Department of Revenue, the Secretary of the
Department of Health and Human Resources, the Secretary of the
Department of Transportation, the West Virginia Higher Education
Policy Commission, the State Treasurer and the Auditor of the State
shall conduct a study of the centralized accounting system for the
purposes specified in subsection (a) of this section and for such
other related purposes as they may agree are advisable. The study
shall include the examination of the centralized accounting system
by an independent consultant agreed upon by the Secretary of the
Department of Administration and the Secretary of the Department of
Revenue after consultation with the remainder of the public
officials designated in this section to conduct the study. A
report of the study and any resulting recommendations made by the
public officials designated by this section to conduct the study
shall be submitted to the Joint Committee on Government and Finance
on or before the first day of December, two thousand five, and
shall include the written report and any recommendations of the
independent consultant.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 524--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section,
designated §5A-2-34, relating to requiring a study of the
centralized accounting system of the state to determine whether
improvements are necessary to obtain optimal function and
economical operation of the system, including, but not limited to
whether a transfer of responsibility for administration of the
system is warranted or indicated to reach those ends, and for such
other related purposes as the Secretary of the Department of
Administration, the Secretary of the Department of Revenue, the
Secretary of the Department of Health and Human Resources, the
Secretary of the Department of Transportation, the West Virginia
Higher Education Policy Commission, the State Treasurer and the
Auditor of the state may agree are advisable.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 524, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 524) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 524) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Dempsey, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Senate Bill No. 583, Relating to appealing orders from family court to circuit court.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Senate
Bill No. 583 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That §51-2A-14 and §51-2A-16 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2A. FAMILY COURTS.
§51-2A-14. Review by circuit court; record; standard of review;
temporary order upon remand.
(a) The circuit court may refuse to consider the petition for
appeal, may affirm or reverse the order, may affirm or reverse the
order in part or may remand the case with instructions for further
hearing before the family court judge.
(b) In considering a petition for appeal, the circuit court
may only consider the record as provided in subsection (d), section
eight of this article.
(c) The circuit court shall review the findings of fact made by the family court judge under the clearly erroneous standard and
shall review the application of law to the facts under an abuse of
discretion standard.
(d) If the circuit court agrees to consider a petition for
appeal, the court shall provide the parties an opportunity to
appear for oral argument, upon the request of either party or in
the discretion of the court. The provisions of this subsection are
effective until the adoption of rules by the Supreme Court of
Appeals governing the appellate procedures of family courts.
(e) If the proceeding is remanded to the family court, the
circuit court must enter appropriate temporary orders for a
parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child, child support, spousal
support or such other temporary relief as the circumstances of the
parties may require. If the circuit court remands the case to the
family court, it must state the legal or factual issues to be
considered by the family court on remand. If the family court
determines that the consideration of those issues also requires
consideration of collateral or interdependent issues, the family
court may also consider those other collateral or interdependent
issues.
(f) The circuit court must enter an order ruling on a petition
for appeal within sixty days from the last day a reply to the petition for appeal could have been filed. If the circuit court
does not enter the order within the sixty-day period or does not,
within the sixty-day period, enter an order stating just cause why
the order has not been timely entered, the circuit clerk shall send
a written notice to the parties that unless the parties both file
an objection within fourteen days of the date of the notice, the
appeal will be transferred to the Supreme Court of Appeals as
provided in section fifteen of this article due to the failure of
the circuit court to timely enter an order. The appeal shall be
transferred without the necessity of the filing of any petition or
further document by the petitioner.
§51-2A-16. Expiration of appellate procedures; exceptions; report
requirements.
(a) The provisions of sections eleven, twelve, thirteen,
fourteen and fifteen of this article shall expire and be of no
force and effect after the thirtieth day of June, two thousand ten,
except as otherwise provided by subsection (b) of this section.
(b) Appeals that are pending before a circuit court or the
Supreme Court of Appeals on the thirtieth day of June, two thousand
ten, but not decided before the first day of July, two thousand
ten, shall proceed to resolution in accordance with the provisions
of sections eleven, twelve, thirteen, fourteen and fifteen of this
article, notwithstanding the provisions of subsection (a) of this section that provide for the expiration of those sections. The
Supreme Court of Appeals shall, by rule, provide procedures for
those appeals that are remanded but not concluded prior to the
first day of July, two thousand ten, in the event that the appeals
process set forth in sections eleven, twelve, thirteen, fourteen
and fifteen of this article is substantially altered as of the
first day of July, two thousand ten.
(c) Prior to the two thousand eight regular session of the
Legislature and annually thereafter, the Supreme Court of Appeals
shall report to the Joint Committee on Government and Finance the
number of appeals from final orders of the family court filed in
the various circuit courts and in the Supreme Court of Appeals, the
number of pro se appeals filed, the subject matter of the appeals,
the time periods in which appeals are concluded, the number of
cases remanded upon appeal and such other detailed information so
as to enable the Legislature to study the appellate procedures for
family court matters and to consider the possible necessity and
feasibility of creating an intermediate appellate court or other
system of appellate procedure.
Respectfully submitted,
Tracy Dempsey, Chair, C. Randy White, Donald T. Caruth,
Conferees on the part of the Senate.
Carrie Webster, Chair, Lidella Wilson Hrutkay, Greg Howard, Conferees on the part of the House of Delegates.
Senator Dempsey, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Dempsey, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 583, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey,
Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 583) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate 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, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 587, Relating to
appointment of counsel in abuse and neglect cases.
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 two, section two, line two, by striking out the words
"custodial parent or";
On page two, section two, line twelve, by striking out the
words "or children";
On page two, section two, line thirteen, after the word "the"
by inserting the words "parents or, if the parents are separated or
divorced, the";
And,
On page two, section two, line eighteen, by striking out the
word "persons" and inserting in lieu thereof the word "person".
On motion of Senator Kessler, the following amendment to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 587) was reported by the Clerk and adopted:
On page two, section two, subsection (a), after the words "parents or, if the parents are separated or divorced, the" by
striking out the words "parent or other person" and inserting in
lieu thereof the words "parents or parent or other person or
persons".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 587, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 587) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as amended, to take effect from passage, and requested the concurrence
of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 661, Relating to juvenile
proceedings and multidisciplinary teams.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 661--A Bill to amend and
reenact §49-5-13a and §49-5-20 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §49-5D-3 of said code, all
relating to juvenile proceedings and multidisciplinary teams;
requiring the Division of Juvenile Services to establish a
multidisciplinary team treatment planning process for certain
juveniles in its custody; requiring multidisciplinary team to be
convened and directed by the Division of Juvenile Services for
juveniles committed to its custody by the court for examination and
diagnosis; specifying members of the multidisciplinary team;
requiring multidisciplinary team to be convened for juveniles prior
to discharge from a juvenile correctional facility or mental health
facility; and authorizing those who convene a multidisciplinary team meeting to obtain an order of the circuit court setting a
hearing and compelling attendance.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 661, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 661) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 661) takes effect from passage.
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, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 666, Relating to exemptions
for certain insurance companies from business franchise tax and
corporation net income tax.
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 three, section seven, line twenty, after the word
"and" by inserting the word "insurance";
And,
On page seven, section five, line eleven, after the word "and"
by inserting the word "insurance".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 666, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, 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)--32.
The nays were: Bailey and Barnes--2.
Absent: None.
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. 666) passed with its title.
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 passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2005--A Bill
making appropriations of public money out of the treasury in accordance
with section fifty-one, article VI of the constitution.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill (Eng. Com. Sub. for H. B. No. 2005) was then read a
second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the provisions of Engrossed Committee Substitute for Senate Bill No. 145.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2005) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--33.
The nays were: Harrison--1.
Absent: None.
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 H. B. No. 2005) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--33.
The nays were: Harrison--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2005) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3363--A Bill
supplementing, amending,
reducing and adding a new item to the existing appropriations from
the State Fund, General Revenue, to the Department of Military
Affairs and Public Safety - Division of Corrections - Correctional
Units, Fund 0450, Fiscal Year 2005, Organization 0608, all
supplementing and amending the appropriation for the fiscal year
ending the thirtieth day of June, two thousand five.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell,
Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3363) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3363) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3363) takes effect from passage.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 237, Allowing municipalities to increase
hotel occupancy tax.
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 two, section two, line seven, after the word "room" by
changing the period to a colon and inserting the following:
Provided, however, That notwithstanding any other provision of this
article to the contrary, a municipality may not impose any tax
authorized by this article on a hotel located within its corporate
limits upon which a county was imposing a tax authorized by this
article on or after the first day of January, two thousand five,
and continuously thereafter to and including the effective date of
annexation of the territory in which the hotel is located pursuant
to article six, chapter eight of this code, and as to that hotel,
the county is authorized to continue to impose and collect the tax
authorized by this article at the rate of three percent of the
consideration paid for the use or occupancy of a hotel room:
Provided further, That in the event the county commission duly
enters an order of record that ceases to impose the tax authorized
by this article on that hotel, then, as to that hotel, the
municipality in which the hotel is located by reason of the
annexation may impose the tax authorized by this article.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 237--A Bill to
amend and reenact §7-18-2, §7-18-9 and §7-18-14 of the Code of West Virginia, 1931, as
amended, all relating to the hotel occupancy tax generally;
allowing municipalities to increase the rate of tax imposed to six
percent; exempting certain hotels from the imposition of the tax;
authorizing imposition of certain tax by counties on certain hotels
located in municipality; requiring public hearings on proposed
increases; providing additional legislative findings as to purposes
for which public financial support should be provided; and
providing a misdemeanor criminal penalty for members of governing
bodies who vote for or cause expenditures of tax revenues for
purposes not specified in said article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 237, as amended by the House of
Delegates, was then put upon its passage.
Prior to the call of the roll, Senator White moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Bailey, Barnes,
Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster,
Guills, Helmick, Hunter, Kessler, Lanham, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse and Tomblin
(Mr. President)--25.
The nays were: Boley, Bowman, Harrison, Jenkins, Plymale,
Unger, Weeks and Yoder--8.
Absent: None.
Excused from voting: White--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Caruth,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills,
Helmick, Hunter, Kessler, Lanham, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Prezioso, Sharpe, Sprouse and Tomblin (Mr.
President)--25.
The nays were: Boley, Bowman, Harrison, Jenkins, Plymale,
Unger, Weeks and Yoder--8.
Absent: None.
Excused from voting: White--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) takes effect July 1, 2005.
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 adoption by that body of the committee of conference report,
passage as amended by the conference report, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2492, Providing a funding
mechanism for teen court programs.
Whereupon, Senator Hunter, from the committee of conference on
matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2492, Providing a funding
mechanism for teen court programs
.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to the Senate amendment
to Engrossed Committee Substitute for House Bill No. 2492 having
met, after full and free conference, have agreed to recommend and
do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates to the Senate amendment to
the bill on page one, and that the Senate and House agree to an
amendment as follows:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§49-5-13d. Teen court program.
(a) Notwithstanding any provision of this article to the contrary, in any county that chooses to institute a teen court
program in accordance with the provisions of this section, any
juvenile who is alleged to have committed a status offense or an
act of delinquency which would be a misdemeanor if committed by an
adult and who is otherwise subject to the provisions of this
article may be given the option of proceeding in the teen court
program as an alternative to the filing of a formal petition under
section seven of this article or proceeding to a disposition as
provided by section eleven-a or thirteen of this article, as the
case may be. The decision to extend the option to enter the teen
court program as an alternative procedure shall be made by the
circuit court if the court finds that the offender is a suitable
candidate for the program. No juvenile may enter the teen court
program unless he or she and his or her parent or guardian consent.
Any juvenile who does not successfully cooperate in and complete
the teen court program and any disposition imposed therein shall be
returned to the circuit court for further disposition as provided
by section eleven-a or thirteen of this article, as the case may
be.
(b) The following provisions apply to all teen court programs:
(1) The judge for each teen court proceeding shall be an
acting or retired circuit court judge or an active member of the
West Virginia state bar, who serves on a voluntary basis.
(2) Any juvenile who selects the teen court program as an
alternative disposition shall agree to serve thereafter on at least
two occasions as a teen court juror.
(3) Volunteer students from grades seven through twelve of the
schools within the county shall be selected to serve as defense
attorney, prosecuting attorney, court clerk, bailiff and jurors for
each proceeding.
(4) Disposition in a teen court proceeding shall consist of
requiring the juvenile to perform sixteen to forty hours of
community service, the duration and type of which shall be
determined by the teen court jury from a standard list of available
community service programs provided by the county juvenile
probation system and a standard list of alternative consequences
that are consistent with the purposes of this article. The
performance of the juvenile shall be monitored by the county
juvenile probation system. The juvenile shall also perform at
least two sessions of teen court jury service and, if considered
appropriate by the circuit court judge, participate in an education
program. Nothing in this section may be construed so as to deny
availability of the services provided under section eleven-a of
this article to juveniles who are otherwise eligible therefor.
(c) The rules for administration, procedure and admission of
evidence shall be determined by the chief circuit judge, but in no case may the court require a juvenile to admit the allegation
against him or her as a prerequisite to participation in the teen
court program. A copy of these rules shall be provided to every
teen court participant.
(d) Each county that operates, or wishes to operate, a teen
court program as provided in this section is hereby authorized to
adopt a mandatory fee of up to five dollars to be assessed as
provided in this subsection. Assessments collected by the clerk of
the court pursuant to this subsection shall be deposited into an
account specifically for the operation and administration of a teen
court program. The clerk of the court of conviction shall collect
the fees established in this subsection and shall remit the fees to
the teen court program. Any mandatory fee established by the
county commission in accordance with the provisions of this
subsection shall be paid by the defendant on a judgment of guilty
or a plea of nolo contendere for each violation committed in the
county of any traffic regulation or law of the road established
under the provisions of chapter seventeen-c of this code or any
local ordinance.
Respectfully submitted,
Marshall Long, Chair, Bonnie Brown, Greg Howard, Conferees on
the part of the House of Delegates.
Jon Blair Hunter, Chair, Dan Foster, Clark S. Barnes, Conferees on the part of the Senate.
Senator Hunter, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Hunter, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2492, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey,
Edgell, Facemyer, Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2492) passed with its title.
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, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 728, Relating to disposition of state
surplus property.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-45. Disposition of surplus state property; semiannual
report; application of proceeds from sale.
(a) The state agency shall have for surplus property has the
exclusive power and authority to make disposition of commodities or
expendable commodities now owned or in the future acquired by the
state when any such the commodities are or become obsolete or
unusable or are not being used or should be replaced.
(b) The agency shall determine what commodities or expendable
commodities should be disposed of and shall make such disposition
in the manner which will be most advantageous to the state. either
by The disposition may include:
(1) Transferring the particular commodities or expendable
commodities between departments; by
(2) Selling such the commodities to county commissions, county
boards of education, municipalities, public service districts,
county building commissions, airport authorities, parks and
recreation commissions, nonprofit domestic corporations qualified
as tax exempt under Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended, and or volunteer fire departments in this
state when such the volunteer fire departments have been held
exempt from taxation under Section 501(c) of the United States
Internal Revenue Code; by
(3) Trading in such the commodities as a part payment on the
purchase of new commodities; or by sale thereof
(4) Cannibalizing the commodities pursuant to procedures
established under subsection (g) of this section;
(5) Properly disposing of the commodities as waste; or
(6) Selling the commodities to the highest bidder by means of
public auctions or sealed bids, after having first advertised the
time, terms and place of such the sale as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. and The publication area for such
the publication shall be is the county wherein in which the sale is
to be conducted. The sale may also be advertised in such other
advertising media as that the agency may deem considers advisable.
The agency may sell to the highest bidder or to any one or more of the highest bidders, if there is more than one, or, if the best
interest of the state will be served, reject all bids.
(c) Upon the transfer of commodities or expendable commodities
between departments, or upon the sale thereof of commodities or
expendable commodities to an eligible organization described above,
the agency shall set the price to be paid by the receiving eligible
organization, with due consideration given to current market
prices.
(d) The agency may sell expendable, obsolete or unused motor
vehicles owned by the state to an eligible organization, other than
volunteer fire departments. In addition, the agency may sell
expendable, obsolete or unused motor vehicles owned by the state
with a gross weight in excess of four thousand pounds to an
eligible volunteer fire department. The agency, with due
consideration given to current market prices, shall set the price
to be paid by the receiving eligible organization for motor
vehicles sold pursuant to this provision: Provided, That the sale
price of any motor vehicle sold to an eligible organization shall
may not be less than the "average loan" value, as published in the
most recent available eastern edition of the National Automobile
Dealers Association (N. A. D. A.) Official Used Car Guide, if such
a the value is available, unless the fair market value of the
vehicle is less than the N. A. D. A. "average loan" value, in which case the vehicle may be sold for less than the "average loan"
value. Such The fair market value must shall be based on a
thorough inspection of the vehicle by an employee of the agency who
shall consider the mileage of the vehicle and the condition of the
body, engine and tires as indicators of its fair market value. If
no such fair market value is available, the agency shall set the
price to be paid by the receiving eligible organization with due
consideration given to current market prices. The duly authorized
representative of such the eligible organization, for whom such the
motor vehicle or other similar surplus equipment is purchased or
otherwise obtained, shall cause ownership and proper title thereto
to the motor vehicle to be vested only in the official name of the
authorized governing body for whom the purchase or transfer was
made. Such The ownership or title, or both, shall remain in the
possession of that governing body and be nontransferable for a
period of not less than one year from the date of such the purchase
or transfer. Resale or transfer of ownership of such the motor
vehicle or equipment prior to an elapsed period of one year may be
made only by reason of certified unserviceability.
(e) The agency shall report to the Legislative Auditor,
semiannually, all sales of commodities or expendable commodities
made during the preceding six months to eligible organizations.
The report shall include a description of the commodities sold, the price paid by the eligible organization which received the
commodities and the report shall show to whom each commodity was
sold.
(f) The proceeds of such the sales or transfers shall be
deposited in the State Treasury to the credit on a pro rata basis
of the fund or funds out of which the purchase of the particular
commodities or expendable commodities was made: Provided, That the
agency may charge and assess fees reasonably related to the costs
of care and handling with respect to the transfer, warehousing,
sale and distribution of state property disposed of or sold
pursuant to the provisions of this section.
(g) (1) For purposes of this section, "cannibalization" means
the removal of parts from one commodity to use in the creation or
repair of another commodity.
(2) The Director of the Purchasing Division shall propose for
promulgation legislative rules to establish procedures that permit
the cannibalization of a commodity when it is in the best interests
of the state. The procedures shall require the approval of the
Director prior to the cannibalization of the commodity under such
circumstances as the procedures may prescribe.
(3) (A) Under circumstances prescribed by the procedures,
state agencies shall be required to submit a form, in writing or
electronically, that, at a minimum, elicits the following information for the commodity the agency is requesting to
cannibalize:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable and, if so, how well it
operates;
(vi) How the agency will dispose of the remaining parts of the
commodity; and
(vii) Who will cannibalize the commodity and how the person is
qualified to remove and reinstall the parts.
(B) If the agency has immediate plans to use the cannibalized
parts, the form shall elicit the following information for the
commodity or commodities that will receive the cannibalized part or
parts:
(i) The commodity identification number;
(ii) The commodity's acquisition date;
(iii) The commodity's acquisition cost;
(iv) A description of the commodity;
(v) Whether the commodity is operable;
(vi) Whether the part restores the commodity to an operable
condition; and
(vii) The cost of the parts and labor to restore the commodity
to an operable condition without cannibalization.
(C) If the agency intends to retain the cannibalized parts for
future use, it shall provide information justifying its request.
(D) The procedures shall provide for the disposal of the
residual components of cannibalized property.
(h) (1) The Director of the Purchasing Division shall propose
for promulgation legislative rules to establish procedures that
allow state agencies to dispose of commodities in a landfill, or by
other lawful means of waste disposal, if the value of the commodity
is less than the benefit that may be realized by the state by
disposing of the commodity using another method authorized in this
section. The procedures shall specify circumstances where the
state agency for surplus property shall inspect the condition of
the commodity prior to authorizing the disposal and those
circumstances when the inspection is not necessary prior to the
authorization.
(2) Whenever a state agency requests permission to dispose of
a commodity in a landfill, or by other lawful means of waste
disposal, the state agency for surplus property has the right to
take possession of the commodity and to dispose of the commodity
using any other method authorized in this section.
(3) If the state agency for surplus property determines, within fifteen days of receiving a commodity, that disposing of the
commodity in a landfill or by other lawful means of waste disposal
would be more beneficial to the state than disposing of the
commodity using any other method authorized in this section, the
cost of the disposal is the responsibility of the agency from which
it received the commodity.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 728--A Bill
to amend and reenact §5A-3-45
of the Code of West Virginia, 1931, as amended, relating to the
disposition of state surplus property generally; allowing
cannibalization of commodities under certain circumstances;
allowing the disposing of commodities as waste under certain
circumstances; providing for procedures by legislative rules;
defining cannibalization; allowing the state agency for surplus
property to take possession of a commodity in certain circumstances
and dispose of the commodity using any method authorized in the
section; and providing that the cost of disposal in certain
circumstances is the responsibility of the agency from which the
state agency for surplus property received the commodity.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 728, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 728) passed with its House of Delegates amended title.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, to take effect July
1, 2005, and requested the concurrence of the Senate in the House
of Delegates amendments to the Senate amendments, as to
Eng. House Bill No. 3361, Relating to the West Virginia Sunset
Law.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page three, section four, subdivision (1), by striking out
the words "Public Land Corporation;";
On page three, section four, subdivision (4), after the word
"Compensation;" by inserting the words "and Public Land
Corporation";
On page ten, section five-b, subsection (b), subdivision (1),
after the word "Dieticians;" by inserting the words "Board of
Examiners of Psychologists;";
On page eleven, section five-b, subsection (b), by striking
out all of subdivision (6);
And,
By renumbering the remaining subdivisions.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed House Bill No. 3361, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3361) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3361) takes effect July 1, 2005.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment to
the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2663, Relating to digging,
growing, collecting, gathering, possessing and selling ginseng.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page twenty, section three-a, subsection (h), subdivision
(1), by striking out the words "a correctional facility" and
inserting in lieu thereof the word "jail".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 2663, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 H. B. No. 2663) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Senate Bill No. 513, Relating to tax credits for
qualified centers for economic development and technology
advancement.
Passed by the Senate in earlier proceedings tonight,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having been reconsidered,
On motion of Senator Chafin, the Senate reconsidered its
action by which in prior proceedings tonight it concurred in the
House of Delegates amendments, as amended (shown in the Senate Journal of today, pages 882 to 889, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the Senate concur in the House of Delegates amendments,
as amended.
At the request of Senator Chafin, and by unanimous consent,
his foregoing motion was withdrawn.
On motion of Senator McCabe, the Senate reconsidered its
action by which in prior proceedings tonight it adopted Senator
McCabe's amendments to the House of Delegates amendments to the
bill (shown in the Senate Journal of today, page 889).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator McCabe's
amendments to the House of Delegates amendments to the bill (Eng.
S. B. No. 513).
At the request of Senator McCabe, and by unanimous consent,
Senator McCabe's amendments to the House of Delegates amendments to
the bill were withdrawn.
On motion of Senator McCabe, the following substitute
amendments to the House of Delegates amendments to the bill were
reported by the Clerk and adopted:
On page four, section eight, subsection (b), after the word
"year" by changing the period to a colon and inserting the following proviso: And provided further, That solely for the
fiscal year beginning on the first day of July, two thousand four,
the Authority may allocate the tax credits allowed for economic
development and technology advancement centers at any time during
the fiscal year.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 513--A Bill to amend and reenact §5E-1-8
of the Code of West Virginia, 1931, as amended, relating to the
Capital Company Act; eliminating the total tax credits available
under the Capital Company Act during the fiscal year beginning on
the first day of July, two thousand five; and modifying the time
period in which the authority may allocate tax credits available
under the Capital Company Act during the fiscal year beginning on
the first day of July, two thousand four.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as just amended.
Engrossed Senate Bill No. 513, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 513) 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,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 513) takes effect July 1, 2005.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments to the Senate
amendments, as to
Eng. House Bill No. 2780, Relating to increasing the
allocation of racetrack video lottery net terminal income to be
used for payment into the pension plan for employees of the
Licensed Racing Association.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page fourteen, section ten, by striking out all of
subsection (j);
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2780--A Bill to amend and reenact §29-22A-
10 of the Code of West Virginia, 1931, as amended, relating to
racetrack video lottery; increasing the allocation of racetrack
video lottery net terminal income to be used for payment into the
pension plan for employees of the Licensed Racing Association and correspondingly reducing the allocation of racetrack video lottery
net terminal income to licensees; deleting provisions relating to
a racetrack which does not have a breeder's program supported by
the Thoroughbred Development Fund or Greyhound Breeding Development
Fund, requiring the one and one-half percent of net terminal income
designated for the West Virginia Thoroughbred Development Fund to
be diverted to the special fund established by the licensee and
used for payment of regular purses; limiting allocation to workers'
compensation and providing for distribution of certain funds to be
deposited in the special fund established by the licensee and used
for payment of regular purses; and providing for expiration of
certain income into the Workers' Compensation Debt Reduction Fund.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed House Bill No. 2780, as amended, was then put upon
its passage.
Having previously adopted Senator Bowman's motion to be
excused from voting under rule number forty-three of the Rules of
the Senate,
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--32.
The nays were: Harrison--1.
Absent: None.
Excused from voting: Bowman--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2780) passed with its House of Delegates amended title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 684, Relating to imposition of tax on
privilege of severing natural gas or oil.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11-13A-3a, §11-13A-3b and §11-13A-3d of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §11-
13A-5b, all to read as follows:
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-3a. Imposition of tax on privilege of severing natural
gas or oil; Tax Commissioner to develop a uniform
reporting form.
(a) Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of severing natural
gas or oil for sale, profit or commercial use, there is hereby
levied and shall be collected from every person exercising such
privilege an annual privilege tax: Provided, That effective for
all taxable periods beginning on or after the first day of January,
two thousand, there is an exemption from the imposition of the tax
provided for in this article on the following: (1) Free natural
gas provided to any surface owner; (2) natural gas produced from
any well which produced an average of less than five thousand cubic
feet of natural gas per day during the calendar year immediately
preceding a given taxable period; (3) oil produced from any oil
well which produced an average of less than one-half barrel of oil
per day during the calendar year immediately preceding a given
taxable period; and (4) for a maximum period of ten years, all natural gas or oil produced from any well which has not produced
marketable quantities of natural gas or oil for five consecutive
years immediately preceding the year in which a well is placed back
into production and thereafter produces marketable quantities of
natural gas or oil.
(b) Rate and measure of tax. -
(1) The tax imposed in subsection (a) of this section shall be
five percent of the gross value of the natural gas or oil produced,
as shown by the gross proceeds derived from the sale thereof by the
producer, except as otherwise provided in this article.
(2) With respect to natural gas produced from wells placed in
service on or before the thirtieth day of November, two thousand
five, the tax imposed in subsection (a) of this section shall be
five percent of the gross value of the natural gas produced, as
shown by the gross proceeds derived from the sale thereof by the
producer, except as otherwise provided in this article.
(3) With respect to natural gas produced from wells placed in
service on or after the first day of December, two thousand five,
the tax imposed in subsection (a) of this section shall be four
percent of the gross value of the natural gas produced, as shown by
the gross proceeds derived from the sale thereof by the producer,
except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this section shall apply to all persons severing gas or oil in this
state, and shall be in addition to all other taxes imposed by law.
(d) (1) The Legislature finds that in addition to the
production reports and financial records which must be filed by oil
and gas producers with the State Tax Commissioner in order to
comply with this section, oil and gas producers are required to
file other production reports with other agencies, including, but
not limited to, the Office of Oil and Gas, the Public Service
Commission and county assessors. The reports required to be filed
are largely duplicative, the compiling of the information in
different formats is unnecessarily time consuming and costly, and
the filing of one report or the sharing of information by agencies
of government would reduce the cost of compliance for oil and gas
producers.
(2) On or before the first day of July, two thousand three,
the Tax Commissioner shall design a common form that may be used
for each of the reports regarding production that are required to
be filed by oil and gas producers, which form shall readily permit
a filing without financial information when such information is
unnecessary. The Commissioner shall also design such forms so as
to permit filings in different formats, including, but not limited
to, electronic formats.
§11-13A-3b. Imposition of tax on privilege of severing timber.
(a) Imposition of tax. -- 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 such privilege an annual
privilege tax.
(b) Rate and measure of tax. -- The tax imposed in subsection
(a) of this section shall be three and twenty-two hundredths
percent of the gross value of the timber produced, as shown by the
gross proceeds derived from the sale thereof by the producer,
except as otherwise provided in this article: Provided, That the
tax imposed in subsection (a) of this section on timber produced on
or after the first day of December, two thousand five, shall be one
and twenty-two hundredths percent of the gross value of the timber
produced, as shown by the gross proceeds derived from the sale
thereof by the producer, except as otherwise provided in this
article.
(c) Tax in addition to other taxes. -- The tax imposed by this
section shall apply to all persons severing timber in this state,
and shall be in addition to all other taxes imposed by law.
(d) Effective date. -- This section, as amended in the year
one thousand nine hundred ninety-three, shall apply to gross
proceeds derived after the thirty-first day of May of such year.
The language of section three of this article, as in effect on the first day of January of such year, shall apply to gross proceeds
derived prior to the first day of June of such year and, with
respect to such gross income, shall be fully and completely
preserved.
§11-13A-3d. Imposition of tax on privilege of severing coalbed
methane.
(a) The Legislature hereby finds and declares the following:
(1) That coalbed methane is underdeveloped and an
underutilized resource within this state which, where practicable,
should be captured and not be vented or wasted;
(2) The health and safety of persons engaged in coal mining is
a paramount concern to the state. The Legislature intends to
preserve coal seams for future safe mining, to facilitate the
expeditious, safe evacuation of coalbed methane from the coalbeds
of this state, and to ensure the safety of miners by encouraging
the advance removal of coalbed methane;
(3) The United States Environmental Protection Agency's
Coalbed Methane Outreach Program encourages United States coal
mines in the United States to remove and use methane that is
otherwise wasted during mining. These projects have important
economic benefits for the mines and their local economies while
they also reduce emissions of methane; and
(4) The initial costs of development of coalbed methane wells can be large in comparison to conventional wells and deoxygenation
and water removal increase development expenditures.
The Legislature, therefore, concludes that an incentive to
coalbed methane development should be implemented to encourage
capture of methane gas that would otherwise be vented to the
atmosphere.
(b) Imposition of tax. -- In lieu of the annual privilege tax
imposed on the severance of natural gas or oil pursuant to section
three-a of this article for the privilege of engaging or continuing
within this state in the business of severing coalbed methane for
sale, profit or commercial use, there is hereby levied and shall be
collected from every person exercising such privilege an annual
privilege tax: Provided, That effective for taxable years
beginning on or after the first day of January, two thousand one,
there is an exemption from the imposition of the tax provided for
in this article for a maximum period of five years for all coalbed
methane produced from any coalbed methane well placed in service
after the first day of January, two thousand. For purposes of this
section, the terms "coalbed methane" and "coalbed methane well"
have the meaning ascribed to them in section two, article twenty-
one, chapter twenty-two of this code. The exemption from tax
provided by this section is applicable to any coalbed methane well
placed in service before the first day of January, two thousand eleven December, two thousand five.
(c) Rate and measure of tax. -- The tax imposed on subsection
(b) of this section is five percent of the gross value of the
coalbed methane produced, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided
in this article: Provided, That for tax years beginning on or
after the first day of January, two thousand five, the tax imposed
in subsection (b) of this section is four percent of the gross
value of the coalbed methane gas produced on or after the first day
of December, two thousand five, as shown by the gross proceeds
derived from the sale thereof by the producer, except as otherwise
provided in this article.
(d) Tax in addition to other taxes. -- The tax imposed by this
section applies to all persons severing coalbed methane in this
state and is in addition to all other taxes imposed by law.
(e) Except as specifically provided in this section,
application of the provisions of this article apply to coalbed
methane in the same manner and with like effect as the provisions
apply to natural gas.
§11-13A-5b. Dedication of ten percent of coalbed methane
severance tax for benefit of counties and
municipalities; distribution of major portion of
such dedicated tax to coalbed methane-producing counties; distribution of minor portion of such
dedicated tax to all counties and municipalities;
reports; rules; special funds in the Office of
State Treasurer; methods and formulae for
distribution of such dedicated tax; expenditure of
funds by counties and municipalities for public
purposes; and requiring special county and
municipal budgets and reports thereon.
(a) Effective the first day of December, two thousand five,
ten percent of the tax attributable to the severance of coalbed
methane imposed by section three-d of this article is hereby
dedicated for the use and benefit of counties and municipalities
within this state and shall be distributed to the counties and
municipalities as provided in this section.
(b) Seventy-five percent of this dedicated tax shall be
distributed by the State Treasurer in the manner specified in this
section to the various counties of this state in which the coalbed
methane upon which this additional tax is imposed was located at
the time it was removed from the ground. Those counties are
referred to in this section as the "coalbed methane-producing
counties". The remaining twenty-five percent of the net proceeds
of this additional tax on coalbed methane shall be distributed
among all the counties and municipalities of this state in the manner specified in this section.
(c) The Tax Commissioner is hereby granted plenary power and
authority to promulgate reasonable rules requiring the furnishing
by coalbed methane producers of such additional information as may
be necessary to compute the allocation required under the
provisions of subsection (f) of this section. The Tax Commissioner
is also hereby granted plenary power and authority to promulgate
such other reasonable rules as may be necessary to implement the
provisions of this section.
(d) In order to provide a procedure for the distribution of
seventy-five percent of the dedicated tax on coalbed methane to the
coalbed methane-producing counties, a special fund known as the
"Coalbed Methane County Revenue Fund" is hereby established in the
State Treasurer's office. In order to provide a procedure for the
distribution of the remaining twenty-five percent of the dedicated
tax on coalbed methane to all counties and municipalities of the
state, without regard to coalbed methane having been produced in
those counties or municipalities, a special fund known as the "All
Counties and Municipalities Coalbed Methane Revenue Fund" is hereby
established in the State Treasurer's office. Seventy-five percent
of the dedicated tax on coalbed methane shall be deposited in the
"Coalbed Methane County Revenue Fund" and twenty-five percent of
the dedicated tax on coalbed methane shall be deposited in the "All Counties and Municipalities Coalbed Methane Revenue Fund", from
time to time, as the proceeds are received by the Tax Commissioner.
The moneys in the funds shall be distributed to the respective
counties and municipalities entitled to the moneys in the manner
set forth in subsection (e) of this section.
(e) The moneys in the "Coalbed Methane County Revenue Fund"
and the moneys in the "All Counties and Municipalities Coalbed
Methane Revenue Fund" shall be allocated among and distributed
annually to the counties and municipalities entitled to the moneys
by the State Treasurer in the manner specified in this section. On
or before each distribution date, the State Treasurer shall
determine the total amount of moneys in each fund which will be
available for distribution to the respective counties and
municipalities entitled to the moneys on that distribution date.
The amount to which an coalbed methane-producing county is entitled
from the "Coalbed Methane County Revenue Fund" shall be determined
in accordance with subsection (f) of this section, and the amount
to which every county and municipality shall be entitled from the
"All Counties and Municipalities Coalbed Methane Revenue Fund"
shall be determined in accordance with subsection (g) of this
section. After determining, as set forth in subsections (f) and
(g) of this section, the amount each county and municipality is
entitled to receive from the respective fund or funds, a warrant of the State Auditor for the sum due to the county or municipality
shall issue and a check drawn thereon making payment of the sum
shall thereafter be distributed to the county or municipality.
(f) The amount to which an coalbed methane-producing county is
entitled from the "Coalbed Methane County Revenue Fund" shall be
determined by dividing the total amount of moneys in the fund
derived from tax on the severance of coalbed methane then available
for distribution by the total volume of cubic feet of coalbed
methane extracted in this state during the preceding year and
multiplying the quotient thus obtained by the number of cubic feet
of coalbed methane taken from the ground in the county during the
preceding year.
(g) The amount to which each county and municipality is
entitled from the "All Counties and Municipalities Coalbed Methane
Revenue Fund" shall be determined in accordance with the provisions
of this subsection. For purposes of this subsection, "population"
means the population as determined by the most recent decennial
census taken under the authority of the United States:
(1) The Treasurer shall first apportion the total amount of
moneys available in the "All Counties and Municipalities Coalbed
Methane Revenue Fund" by multiplying the total amount in the fund
by the percentage which the population of each county bears to the
total population of the state. The amount thus apportioned for each county is the county's "base share".
(2) Each county's "base share" shall then be subdivided into
two portions. One portion is determined by multiplying the "base
share" by that percentage which the total population of all
unincorporated areas within the county bears to the total
population of the county, and the other portion is determined by
multiplying the "base share" by that percentage which the total
population of all municipalities within the county bears to the
total population of the county. The former portion shall be paid
to the county and the latter portion shall be the "municipalities'
portion" of the county's "base share". The percentage of the
latter portion to which each municipality in the county is entitled
shall be determined by multiplying the total of the latter portion
by the percentage which the population of each municipality within
the county bears to the total population of all municipalities
within the county.
(h) Moneys distributed to any county or municipality under the
provisions of this section, from either or both special funds,
shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the
municipality for such purposes as the county commission or
governing body shall determine to be in the best interest of its
respective county or municipality: Provided, That in counties with population in excess of two hundred thousand, at least seventy-five
percent of the funds received from the Coalbed Methane County
Revenue Fund shall be apportioned to and expended within the
coalbed methane-producing area or areas of the county, the coalbed
methane-producing areas of each county to be determined generally
by the State Tax Commissioner: Provided, however, That the moneys
distributed to any county or municipality under the provisions of
this section shall not be budgeted for personal services in an
amount to exceed one fourth of the total amount of the moneys.
(i) On or before the first day of November, two thousand five
and each first day of November thereafter, each county commission
or governing body of a municipality receiving any such moneys shall
submit to the Tax Commissioner on forms provided by the Tax
Commissioner a special budget, detailing how the moneys are to be
spent during the subsequent fiscal year. The budget shall be
followed in expending the moneys unless a subsequent budget is
approved by the State Tax Commissioner. All unexpended balances
remaining in the county or municipality general fund at the close
of a fiscal year shall remain in the general fund and may be
expended by the county or municipality without restriction.
(j) On or before the fifteenth day of December, two thousand
five, and each fifteenth day of December thereafter, the Tax
Commissioner shall deliver to the Clerk of the Senate and the Clerk of the House of Delegates a consolidated report of the budgets,
created by subsection (i) of this section, for all county
commissions and municipalities as of the fifteenth day of July of
the current year.
(k) The State Tax Commissioner shall retain for the benefit of
the state from the dedicated tax attributable to the severance of
coalbed methane the amount of thirty-five thousand dollars annually
as a fee for the administration of the additional tax by the Tax
Commissioner.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 684--A Bill
to amend and reenact §11-13A-
3a, §11-13A-3b and §11-13A-3d of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto a new section,
designated §11-13A-5b, all relating to reducing from five percent
to four percent in the severance tax imposed on natural gas
produced from wells placed in service on or after the first day of
December, two thousand five; reducing from three and twenty-two
hundredths percent to one and twenty-two hundredths percent in the
severance tax imposed on timber produced on or after the first day
of December, two thousand five; reducing the period of availability
of a certain five-year severance tax exemption for coalbed methane production; reducing from five percent to four percent the
severance tax on gas produced from coalbed methane wells on or
after the first day of December, two thousand five; and dedicating
and distributing ten percent of coalbed methane severance tax for
benefit of counties and municipalities.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 684, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Jenkins, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Hunter and Kessler--2.
Absent: None.
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. 684) passed with its House of Delegates amended title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 746, Reducing rate of tax paid on
privilege of severing timber after certain date.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11-13A-3a, §11-13A-3b and §11-13A-3d of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §11-
13A-5b, all to read as follows:
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-3a. Imposition of tax on privilege of severing natural
gas or oil; Tax Commissioner to develop a uniform
reporting form.
(a) Imposition of tax. -- For the privilege of engaging or
continuing within this state in the business of severing natural
gas or oil for sale, profit or commercial use, there is hereby
levied and shall be collected from every person exercising such privilege an annual privilege tax: Provided, That effective for
all taxable periods beginning on or after the first day of January,
two thousand, there is an exemption from the imposition of the tax
provided for in this article on the following: (1) Free natural
gas provided to any surface owner; (2) natural gas produced from
any well which produced an average of less than five thousand cubic
feet of natural gas per day during the calendar year immediately
preceding a given taxable period; (3) oil produced from any oil
well which produced an average of less than one-half barrel of oil
per day during the calendar year immediately preceding a given
taxable period; and (4) for a maximum period of ten years, all
natural gas or oil produced from any well which has not produced
marketable quantities of natural gas or oil for five consecutive
years immediately preceding the year in which a well is placed back
into production and thereafter produces marketable quantities of
natural gas or oil.
(b) Rate and measure of tax. -
(1) The tax imposed in subsection (a) of this section shall be
five percent of the gross value of the natural gas or oil produced,
as shown by the gross proceeds derived from the sale thereof by the
producer, except as otherwise provided in this article.
(2) With respect to natural gas produced from wells placed in
service on or before the thirtieth day of November, two thousand five, the tax imposed in subsection (a) of this section shall be
five percent of the gross value of the natural gas produced, as
shown by the gross proceeds derived from the sale thereof by the
producer, except as otherwise provided in this article.
(3) With respect to natural gas produced from wells placed in
service on or after the first day of December, two thousand five,
the tax imposed in subsection (a) of this section shall be four
percent of the gross value of the natural gas produced, as shown by
the gross proceeds derived from the sale thereof by the producer,
except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this
section shall apply to all persons severing gas or oil in this
state, and shall be in addition to all other taxes imposed by law.
(d) (1) The Legislature finds that in addition to the
production reports and financial records which must be filed by oil
and gas producers with the State Tax Commissioner in order to
comply with this section, oil and gas producers are required to
file other production reports with other agencies, including, but
not limited to, the Office of Oil and Gas, the Public Service
Commission and county assessors. The reports required to be filed
are largely duplicative, the compiling of the information in
different formats is unnecessarily time consuming and costly, and
the filing of one report or the sharing of information by agencies of government would reduce the cost of compliance for oil and gas
producers.
(2) On or before the first day of July, two thousand three,
the Tax Commissioner shall design a common form that may be used
for each of the reports regarding production that are required to
be filed by oil and gas producers, which form shall readily permit
a filing without financial information when such information is
unnecessary. The Commissioner shall also design such forms so as
to permit filings in different formats, including, but not limited
to, electronic formats.
§11-13A-3b. Imposition of tax on privilege of severing timber.
(a) Imposition of tax. -- 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 such privilege an annual
privilege tax.
(b) Rate and measure of tax. -- The tax imposed in subsection
(a) of this section shall be three and twenty-two hundredths
percent of the gross value of the timber produced, as shown by the
gross proceeds derived from the sale thereof by the producer,
except as otherwise provided in this article: Provided, That the
tax imposed in subsection (a) of this section on timber produced on
or after the first day of December, two thousand five, shall be one and twenty-two hundredths percent of the gross value of the timber
produced, as shown by the gross proceeds derived from the sale
thereof by the producer, except as otherwise provided in this
article.
(c) Tax in addition to other taxes. -- The tax imposed by this
section shall apply to all persons severing timber in this state,
and shall be in addition to all other taxes imposed by law.
(d) Effective date. -- This section, as amended in the year
one thousand nine hundred ninety-three, shall apply to gross
proceeds derived after the thirty-first day of May of such year.
The language of section three of this article, as in effect on the
first day of January of such year, shall apply to gross proceeds
derived prior to the first day of June of such year and, with
respect to such gross income, shall be fully and completely
preserved.
§11-13A-3d. Imposition of tax on privilege of severing coalbed
methane.
(a) The Legislature hereby finds and declares the following:
(1) That coalbed methane is underdeveloped and an
underutilized resource within this state which, where practicable,
should be captured and not be vented or wasted;
(2) The health and safety of persons engaged in coal mining is
a paramount concern to the state. The Legislature intends to preserve coal seams for future safe mining, to facilitate the
expeditious, safe evacuation of coalbed methane from the coalbeds
of this state and to ensure the safety of miners by encouraging the
advance removal of coalbed methane;
(3) The United States Environmental Protection Agency's
Coalbed Methane Outreach Program encourages United States coal
mines in the United States to remove and use methane that is
otherwise wasted during mining. These projects have important
economic benefits for the mines and their local economies while
they also reduce emissions of methane; and
(4) The initial costs of development of coalbed methane wells
can be large in comparison to conventional wells and deoxygenation
and water removal increase development expenditures.
The Legislature, therefore, concludes that an incentive to
coalbed methane development should be implemented to encourage
capture of methane gas that would otherwise be vented to the
atmosphere.
(b) Imposition of tax. -- In lieu of the annual privilege tax
imposed on the severance of natural gas or oil pursuant to section
three-a of this article for the privilege of engaging or continuing
within this state in the business of severing coalbed methane for
sale, profit or commercial use, there is hereby levied and shall be
collected from every person exercising such privilege an annual privilege tax: Provided, That effective for taxable years
beginning on or after the first day of January, two thousand one,
there is an exemption from the imposition of the tax provided for
in this article for a maximum period of five years for all coalbed
methane produced from any coalbed methane well placed in service
after the first day of January, two thousand. For purposes of this
section, the terms "coalbed methane" and "coalbed methane well"
have the meaning ascribed to them in section two, article twenty-
one, chapter twenty-two of this code. The exemption from tax
provided by this section is applicable to any coalbed methane well
placed in service before the first day of January, two thousand
eleven December, two thousand five.
(c) Rate and measure of tax. -- The tax imposed on subsection
(b) of this section is five percent of the gross value of the
coalbed methane produced, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided
in this article: Provided, That for tax years beginning on or
after the first day of January, two thousand five, the tax imposed
in subsection (b) of this section is four percent of the gross
value of the coalbed methane gas produced on or after the first day
of December, two thousand five, as shown by the gross proceeds
derived from the sale thereof by the producer, except as otherwise
provided in this article.
(d) Tax in addition to other taxes. -- The tax imposed by this
section applies to all persons severing coalbed methane in this
state, and is in addition to all other taxes imposed by law.
(e) Except as specifically provided in this section,
application of the provisions of this article apply to coalbed
methane in the same manner and with like effect as the provisions
apply to natural gas.
§11-13A-5b. Dedication of ten percent of coalbed methane severance
tax for benefit of counties and municipalities;
distribution of major portion of such dedicated tax
to coalbed methane-producing counties; distribution
of minor portion of such dedicated tax to all
counties and municipalities; reports; rules;
special funds in the Office of State Treasurer;
methods and formulae for distribution of such
dedicated tax; expenditure of funds by counties and
municipalities for public purposes; and requiring
special county and municipal budgets and reports
thereon.
(a) Effective the first day of December, two thousand five,
ten percent of the tax attributable to the severance of coalbed
methane imposed by section three-d of this article is hereby
dedicated for the use and benefit of counties and municipalities within this state and shall be distributed to the counties and
municipalities as provided in this section.
(b) Seventy-five percent of this dedicated tax shall be
distributed by the State Treasurer in the manner specified in this
section to the various counties of this state in which the coalbed
methane upon which this additional tax is imposed was located at
the time it was removed from the ground. Those counties are
referred to in this section as the "coalbed methane-producing
counties". The remaining twenty-five percent of the net proceeds
of this additional tax on coalbed methane shall be distributed
among all the counties and municipalities of this state in the
manner specified in this section.
(c) The Tax Commissioner is hereby granted plenary power and
authority to promulgate reasonable rules requiring the furnishing
by coalbed methane producers of such additional information as may
be necessary to compute the allocation required under the
provisions of subsection (f) of this section. The Tax Commissioner
is also hereby granted plenary power and authority to promulgate
such other reasonable rules as may be necessary to implement the
provisions of this section.
(d) In order to provide a procedure for the distribution of
seventy-five percent of the dedicated tax on coalbed methane to the
coalbed methane-producing counties, a special fund known as the "Coalbed Methane County Revenue Fund" is hereby established in the
State Treasurer's office. In order to provide a procedure for the
distribution of the remaining twenty-five percent of the dedicated
tax on coalbed methane to all counties and municipalities of the
state, without regard to coalbed methane having been produced in
those counties or municipalities, a special fund known as the "All
Counties and Municipalities Coalbed Methane Revenue Fund" is hereby
established in the State Treasurer's office. Seventy-five percent
of the dedicated tax on coalbed methane shall be deposited in the
"Coalbed Methane County Revenue Fund" and twenty-five percent of
the dedicated tax on coalbed methane shall be deposited in the "All
Counties and Municipalities Coalbed Methane Revenue Fund", from
time to time, as the proceeds are received by the Tax Commissioner.
The moneys in the funds shall be distributed to the respective
counties and municipalities entitled to the moneys in the manner
set forth in subsection (e) of this section.
(e) The moneys in the "Coalbed Methane County Revenue Fund"
and the moneys in the "All Counties and Municipalities Coalbed
Methane Revenue Fund" shall be allocated among and distributed
annually to the counties and municipalities entitled to the moneys
by the State Treasurer in the manner specified in this section. On
or before each distribution date, the State Treasurer shall
determine the total amount of moneys in each fund which will be available for distribution to the respective counties and
municipalities entitled to the moneys on that distribution date.
The amount to which an coalbed methane-producing county is entitled
from the "Coalbed Methane County Revenue Fund" shall be determined
in accordance with subsection (f) of this section, and the amount
to which every county and municipality shall be entitled from the
"All Counties and Municipalities Coalbed Methane Revenue Fund"
shall be determined in accordance with subsection (g) of this
section. After determining, as set forth in subsections (f) and
(g) of this section, the amount each county and municipality is
entitled to receive from the respective fund or funds, a warrant of
the state auditor for the sum due to the county or municipality
shall issue and a check drawn thereon making payment of the sum
shall thereafter be distributed to the county or municipality.
(f) The amount to which an coalbed methane-producing county is
entitled from the "Coalbed Methane County Revenue Fund" shall be
determined by dividing the total amount of moneys in the fund
derived from tax on the severance of coalbed methane then available
for distribution by the total volume of cubic feet of coalbed
methane extracted in this state during the preceding year and
multiplying the quotient thus obtained by the number of cubic feet
of coalbed methane taken from the ground in the county during the
preceding year.
(g) The amount to which each county and municipality is
entitled from the "All Counties and Municipalities Coalbed Methane
Revenue Fund" shall be determined in accordance with the provisions
of this subsection. For purposes of this subsection "population"
means the population as determined by the most recent decennial
census taken under the authority of the United States:
(1) The Treasurer shall first apportion the total amount of
moneys available in the "All Counties and Municipalities Coalbed
Methane Revenue Fund" by multiplying the total amount in the fund
by the percentage which the population of each county bears to the
total population of the state. The amount thus apportioned for each
county is the county's "base share".
(2) Each county's "base share" shall then be subdivided into
two portions. One portion is determined by multiplying the "base
share" by that percentage which the total population of all
unincorporated areas within the county bears to the total
population of the county, and the other portion is determined by
multiplying the "base share" by that percentage which the total
population of all municipalities within the county bears to the
total population of the county. The former portion shall be paid
to the county and the latter portion shall be the "municipalities'
portion" of the county's "base share". The percentage of the
latter portion to which each municipality in the county is entitled shall be determined by multiplying the total of the latter portion
by the percentage which the population of each municipality within
the county bears to the total population of all municipalities
within the county.
(h) Moneys distributed to any county or municipality under the
provisions of this section, from either or both special funds,
shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the
municipality for such purposes as the county commission or
governing body shall determine to be in the best interest of its
respective county or municipality: Provided, That in counties with
population in excess of two hundred thousand, at least seventy-five
percent of the funds received from the coalbed methane county
revenue fund shall be apportioned to and expended within the
coalbed methane-producing area or areas of the county, the coalbed
methane-producing areas of each county to be determined generally
by the State Tax Commissioner: Provided, however, That the moneys
distributed to any county or municipality under the provisions of
this section shall not be budgeted for personal services in an
amount to exceed one fourth of the total amount of the moneys.
(i) On or before the first day of November, two thousand five,
and each first day of November thereafter, each county commission
or governing body of a municipality receiving any such moneys shall submit to the Tax Commissioner on forms provided by the Tax
Commissioner a special budget, detailing how the moneys are to be
spent during the subsequent fiscal year. The budget shall be
followed in expending the moneys unless a subsequent budget is
approved by the State Tax Commissioner. All unexpended balances
remaining in the county or municipality general fund at the close
of a fiscal year shall remain in the general fund and may be
expended by the county or municipality without restriction.
(j) On or before the fifteenth day of December, two thousand
five, and each fifteenth day of December thereafter, the Tax
Commissioner shall deliver to the Clerk of the Senate and the Clerk
of the House of Delegates a consolidated report of the budgets,
created by subsection (i) of this section, for all county
commissions and municipalities as of the fifteenth day of July of
the current year.
(k) The State Tax Commissioner shall retain for the benefit of
the state from the dedicated tax attributable to the severance of
coalbed methane the amount of thirty-five thousand dollars annually
as a fee for the administration of the additional tax by the Tax
Commissioner.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 746--A Bill
to amend and reenact §11-13A-
3a, §11-13A-3b and §11-13A-3d of the Code of West Virginia, 1931,
as amended; and to amend said code by adding thereto a new section,
designated §11-13A-5b, all relating to the reduction from five
percent to four percent in the severance tax imposed on natural gas
produced from wells placed in service on or after the first day of
December, two thousand five; the reduction from three and
twenty-two hundredths percent to one and twenty-two hundredths
percent in the severance tax imposed on timber produced on or after
the first day of December, two thousand five; reducing the period
of availability of a certain five-year severance tax exemption for
coalbed methane production; reducing from five percent to four
percent the severance tax on gas produced from coalbed methane
wells on or after the first day of December, two thousand five; and
dedicating and distributing ten percent of coalbed methane
severance tax for benefit of counties and municipalities.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 746, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Foster, Guills, Harrison, Helmick, Jenkins, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Hunter and Kessler--2.
Absent: None.
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. 746) passed with its House of Delegates amended title.
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 concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, and requested the concurrence of the Senate in the
House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2266, Imposing a one hundred
dollar per year fee for licenses allowing wine sampling events by
wine retailers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page nine, section three, subsection (i), by striking out the words "restaurant may offer for sale off the premises" and
inserting in lieu thereof the words "private wine restaurant may
offer for sale for consumption off the premises".
Senator Chafin moved that the Senate concur in the foregoing
House of Delegates amendment to the Senate amendments to the bill.
Following discussion,
Senator Minard moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on
Senator Chafin's motion to concur in the House of Delegates
amendment to the Senate amendments to the bill (Eng. Com. Sub. for
H. B. No. 2266), the same was put and prevailed.
Engrossed Committee Substitute for House Bill No. 2266, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--32.
The nays were: Barnes and Harrison--2.
Absent: None.
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 H. B. No. 2266) passed with its Senate amended title.
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 July 1, 2005, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 729, Authorizing magistrate
courts order home incarceration.
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 one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-4. Home incarceration; period of home incarceration;
applicability.
(a) As a condition of probation or bail or as an alternative
sentence to another form of incarceration for any criminal
violation of this code over which a circuit court has jurisdiction, a circuit court may order an offender confined to the offender's
home for a period of home incarceration. As an alternative
sentence to incarceration in jail for any criminal violation of
this code over which a magistrate court has jurisdiction or as a
condition of bail for a criminal violation of this code over which
a magistrate court has jurisdiction to set bail, a magistrate may
order an adult offender convicted of any criminal violation under
this code over which a magistrate court has jurisdiction, be
confined to the offender's home for a period of electronically
monitored home incarceration: Provided, That electronic monitoring
may not be required in a specific case if a circuit court upon
petition thereto finds by order that electronic monitoring is not
necessary.
(b) The period of home incarceration may be continuous or
intermittent, as the circuit court or magistrate court orders, or
continuous except as provided by section five of this article if
ordered by a magistrate. However, the aggregate time actually
spent in home incarceration may not exceed the term of imprisonment
or incarceration prescribed by this code for the offense committed
by the offender.
(c) A grant of home incarceration under this article
constitutes a waiver of any entitlement to deduction from a
sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
(d) When imposing home incarceration as a condition of bail,
a magistrate shall do so consistent with guidelines promulgated by
the Supreme Court of Appeals.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 729--A Bill to amend and
reenact §62-11B-4 of the Code of West Virginia, 1931, as amended,
relating to home confinement; authorizing magistrate courts to
order home incarceration as a condition of bail; authorizing
magistrate courts to order home incarceration intermittently; and
requiring magistrate court orders of home incarceration as a
condition of bail be done consistent with Supreme Court guidelines.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 729, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 729) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2005.
On this question, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 729) takes effect July 1, 2005.
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, and requested the concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 561,
Authorizing Greater Huntington Park and Recreation District impose
fees and issue revenue bonds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
section
and inserting in lieu thereof the following:
GREATER HUNTINGTON PARK AND RECREATION DISTRICT.
§7. Financing and financial powers.
The park district shall have the following powers to:
(1) Make charges to the public for services offered or goods
sold by the park district.
(a) Charges for services may be in the form of, but not
limited to: Admission and entrance fees; exclusive use and rental
fees; user fees; license and permit fees; equipment rental; program
maintenance fees; instructor fees; special accommodation fees;
amusement fees; restricted membership fees; and cemetery service
fees.
(b) Charges for goods sold may be in the forms of, but not limited to: Beverages and foods; novelties and gifts; clothing;
athletic equipment and supplies; cemetery plots, crypts, monuments,
memorials, markers, vaults and any other forms of merchandise sold
in connection with the burial of the dead; and other items that may
pertain to the operation and maintenance of the park district.
(2) Impose upon the users of the park system reasonable
service fees in addition to the service fees authorized by
paragraph (a), subdivision (1) of this section. As used in this
section, "users" means any persons to whom the park system is made
available.
(a) The board of directors of the park district may adopt one
or more resolutions establishing the amount and manner of
collection of the fees and providing for reasonable penalties for
failure to pay service fees. No resolution imposing a service fee
is effective until it is ratified by a majority of the legal votes
cast by the qualified voters of the district at a primary or
general election.
(b) In addition to meeting the ballot and election
requirements set forth in subdivision (3) of this section, the
ballot question must set forth the service fee, the manner in which
it will be imposed and the general use to which the proceeds of the
service fee shall be put. From time to time, the board may submit
additional resolutions imposing additional service fees to the district's electors for approval pursuant to this section.
(3) Issue revenue bonds or refunding revenue bonds for the
district, in the manner prescribed by the applicable provisions of
sections seven, ten, twelve and sixteen, article sixteen, chapter
eight of the Code of West Virginia, one thousand nine hundred
thirty-one, as amended.
No revenue bonds, except for refunding
revenue bonds, may be issued under this section until all questions
connected with the bonds are first submitted to a vote of the
qualified electors of the district for which the bonds are to be
issued, and receive a majority of all the votes cast for and
against the issuance. The ballot question must set forth:
(a) The necessity for issuing the bonds;
(b) Purpose or purposes for which the proceeds of bonds are to
be expended;
(c) Total indebtedness, bonded or otherwise;
(d) Amount of the proposed bond issue;
(e) Maximum term of bonds and series;
(f) Maximum rate of interest;
(g) Date of election;
(h) That the park district is authorized to collect fees to
provide funds for the payment of the interest upon the bonds and
the principal at maturity, and the approximate amount of fees
necessary for this purpose.
(i) Notice of any election shall be given by publication,
within fourteen consecutive days next preceding the date of the
election, of the resolution imposing the service fee as a Class II
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code and the publication area for
publication shall be the district. All of the provisions of the
general election laws of this State concerning primary or general
elections, when not in conflict with the provisions of this
section, shall apply to elections hereunder, insofar as
practicable.
(2) (4) Annually levy on each one hundred dollars of the
assessed valuation of the property taxable in said park district,
within the corporate boundaries of the city of Huntington according
to the last assessment thereof for state and county purposes, as
follows:
On Class I property, one and one-half cents; on Class II
property, three cents; on Class IV property, six cents. The park
district may levy a lesser amount, in which case the above levies
shall be reduced proportionately. These levies shall be made at the
time and in the manner provided by article eight, chapter eleven of
the Code of West Virginia, one thousand nine hundred thirty-one, as
amended; except that the levies shall be included in the maximum
rates for the city of Huntington as established by law.
After the park district has made the levy, it shall certify to
the finance director of the city of Huntington the amount of the
said levy, and the finance director shall thereupon extend the levy
upon the tax tickets, and all levies made by the park district
shall be collected by the finance director who shall occupy a
fiduciary relationship with the park district, and then such levy
funds shall be paid to the park district upon written order of the
park district signed by the president of the park district and
countersigned by the secretary of the park district.
Levies for support, maintenance and operation.
(3) (5) In order to ensure adequate support for the
maintenance and operation of the park district, the following
governing authorities shall, upon written request by the park
district, levy annually as follows within the respective taxing
districts of the governing authorities, on each one hundred dollars
of assessed valuation of the property taxable in the area served by
it according to the last assessment for state and county purposes,
amounts not exceeding the following amounts for fiscal year
beginning the first day of July, one thousand nine hundred eighty-
three:
(a) The county commission of Cabell County, for the first year
of the act and annually thereafter: Class I, .433 cents; Class II,
.866 cents; Class III and Class IV, 1.73 cents.
(b) The county commission of Wayne County, for the first year
of the act and annually thereafter; Class I, .0066 cents; Class II,
.0132 cents; Class III and Class IV, .0266 cents.
(c) The board of education of the county of Cabell shall
provide funds available to the board through special and excess
levies for the first year of the act and annually thereafter: Class
I, .433 cents; Class II, .866 cents; Class III and Class IV, 1.73
cents.
(d) The city of Huntington, for the first year of the act and
annually thereafter: Class I, one and three-tenths cents; Class II,
two and six-tenths cents; Class III and Class IV, five and
two-tenths cents.
(e) The town of Milton, for the first year of the act and
annually thereafter: Class I, one and three-tenths cents; Class II,
two and six-tenths cents; Class III and Class IV, five and two-
tenths cents.
In addition to the aforesaid amounts which, upon written
request by said board, the governing authorities shall levy, each
such governing authority may support the park district with any
other general or special revenues or excess levies. All income
realized by the operation of the park district from any sources
other than the above levies shall be used by the board of directors
for support of the park district.
All money collected or appropriated by the foregoing governing
authorities for park district purposes shall be deposited in a
special account of the park district and shall be disbursed by that
board for the purpose of operating such park district.
(4) (6) Assess the cost of improvements to or construction of
streets, sidewalks, sewers, curbs, alleys, public ways or
easements, or portions thereof, upon the abutting property owners
whose property lies within the park district. Such assessments
shall require approval of a majority of the commissioners present
and voting and shall be commenced and conducted in such manner as
is prescribed by article eighteen, chapter eight of the Code of
West Virginia, one thousand nine hundred thirty-one, as amended.
(5) (7) The municipalities of Huntington and Milton and the
counties of Cabell and Wayne are hereby empowered, and authorized
to issue, in the manner prescribed by law, revenue bonds or general
obligation bonds for the purpose of raising funds to establish,
construct, improve, extend, develop, maintain or operate a system
of public parks and recreational facilities for the city or
counties, or to refund any bonds of the city or counties, the
proceeds of which were expended in the establishing, constructing,
improving, extending, developing, maintaining or operating of such
public park and recreation system or any part thereof. Any bonds
issued for any of the purposes stated in this section shall contain in the title or subtitle thereto the words "public park and
recreation bonds", in order to identify the same, and shall be of
such form, denomination and maturity and shall bear such rate of
interest as shall be fixed by ordinance of the governing body of
the city or counties. The governing body may provide for the
issuance of bonds for other lawful purposes of the city or counties
in the same ordinance in which provision shall be made for the
issuance of bonds under the provisions of this section. The park
district shall pay all of the costs and expenses of any election
which shall be held to authorize the issuance of public park and
recreation bonds only. The costs and expenses of holding an
election to authorize the issuance of public park and recreation
bonds and bonds for other city or county purposes shall be paid by
the park district and the city or counties respectively, in the
proportion that the public park and recreation bonds bear to the
total amount of bonds authorized.
Whenever the governing body of the city or counties and the
requisite majority of the legal votes cast at the election thereon
shall authorize in the manner prescribed by law, the issuance of
bonds for the purpose of establishing, constructing, improving,
extending, developing, maintaining or operating, or any combination
of the foregoing, a system of public parks and recreational
facilities for the city or counties or for refunding any outstanding bonds, the proceeds of which were applied to any of
said purposes, said bonds shall be issued and delivered to the park
district to be by it sold in the manner prescribed by law and the
proceeds thereof shall be paid into the treasury of the park
district and the same shall be applied and utilized by the park
district for the purposes prescribed by the ordinance authorizing
the issuance of such bonds. In any ordinance for the issuance of
bonds for such purposes, it shall be a sufficient statement of the
purposes for creating the debt to specify that the same is for the
purpose of establishing, constructing, improving, extending,
developing, maintaining or operating, or any combination of the
foregoing, a public park and recreation system for the city or
counties, without specifying the particular establishment,
construction, improvement, extension, development, maintenance or
operation contemplated; but an ordinance for refunding bonds shall
designate the issue and the number of bonds which it is proposed to
refund.
(6) (8) Sue and be sued; make contracts and guarantees; incur
liabilities; borrow or lend money for any time period deemed
advisable by the commission, sell, mortgage, lease, exchange,
transfer or otherwise dispose of its property; or pledge its
property as collateral or security for any time period deemed
advisable by the commission.
(7) (9) Create trusts of such kind as will expedite the
efficient management of the property and other assets owned or
controlled by the park district. The trustee, whether individual or
corporate, in any such trust shall have a fiduciary relationship
with the park district and may be removed by the park district for
good cause shown or for a breach of the fiduciary relationship with
the park district.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 561, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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 Com. Sub. for S. B. No. 561) passed with its title.
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, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 268, Relating to underage
possession of beer and liquor; penalty.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page two, line six, after the word "in" by striking out the
remainder of the bill and inserting in lieu thereof the following:
jail for a period not to exceed seventy-two hours, or both fined
and imprisoned or, in lieu of such fine and incarceration, may, for
the first offense, be placed on probation for a period not to
exceed one year. Any person under the age of eighteen years who
purchases, consumes, sells, possesses or serves nonintoxicating
beer is guilty of a status offense as that term is defined in
section four, article one, chapter forty-nine of this code and,
upon adjudication therefor, shall be referred to the Department of
Health and Human Resources for services, as provided in section eleven, article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the
Commissioner, shall prevent or be deemed to prohibit any person who
is at least eighteen years of age from serving in the lawful
employment of any licensee, which may include the sale or delivery
of nonintoxicating beer as defined in this article. Further,
nothing in this article, nor any rule or regulation of the
Commissioner, shall prevent or be deemed to prohibit any person who
is less than eighteen but at least sixteen years of age from being
employed by a licensee whose principal business is the sale of food
or consumer goods or the providing of recreational activities,
including, but not limited to, nationally franchised fast food
outlets, family-oriented restaurants, bowling alleys, drug stores,
discount stores, grocery stores and convenience stores: Provided,
That such person shall not sell or deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit a person who is
at least eighteen years of age from purchasing or possessing
nonintoxicating beer when he or she is acting upon the request of
or under the direction and control of any member of a state,
federal or local law-enforcement agency or the West Virginia
Alcohol Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules and regulations of the Commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing nonintoxicating beer, misrepresents his or
her age or who for such purpose presents or offers any written
evidence of age which is false, fraudulent or not actually his or
her own or who illegally attempts to purchase nonintoxicating beer
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed fifty dollars or shall be imprisoned
in jail for a period not to exceed seventy-two hours, or both such
fine and imprisonment or, in lieu of such fine and imprisonment,
may, for the first offense, be placed on probation for a period not
exceeding one year.
(c) Any person who shall knowingly buy for, give to or furnish
nonintoxicating beer to anyone under the age of twenty-one to whom
they are not related by blood or marriage is guilty of a
misdemeanor and, upon conviction thereof, shall be fined an amount
not to exceed one hundred dollars or shall be imprisoned in the
county jail for a period not to exceed ten days, or both such fine
and imprisonment.
(d) (1) Any person who at any one time transports into the
state for their personal use, and not for resale, more than six and
seventy-five hundredths gallons of nonintoxicating beer, upon which
the West Virginia barrel tax has not been imposed, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined an
amount not to exceed one hundred dollars and have all the untaxed
nonintoxicating beer in their possession at the time of the arrest
confiscated, or imprisoned for ten days in the county jail, or both
fined and imprisoned.
(2) If the Congress of the United States repeals the mandate
established by the Surface Transportation Assistance Act of 1982
relating to national uniform drinking age of twenty-one as found in
section six of Public Law 98-363, or a court of competent
jurisdiction declares the provision to be unconstitutional or
otherwise invalid, it is the intent of the Legislature that the
provisions contained in this section and section eighteen of this
article which prohibit the sale, furnishing, giving, purchase or
ownership of nonintoxicating beer to or by a person who is less
than twenty-one years of age shall be null and void and the
provisions therein shall thereafter remain in effect and apply to
the sale, furnishing, giving, purchase or ownership of
nonintoxicating beer to or by a person who is less than nineteen
years of age.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 3A. SALES BY RETAIL LIQUOR LICENSEES.
§60-3A-24. Unlawful acts by persons.
(a) (1) Any person who is eighteen or over but under the age of twenty-one years who purchases, consumes, sells, serves or
possesses alcoholic liquor is guilty of a misdemeanor and, upon
conviction thereof, shall be fined an amount not to exceed five
hundred dollars or shall be incarcerated in the county jail for a
period not to exceed seventy-two hours, or both fined and
imprisoned or, in lieu of such fine and incarceration, may, for the
first offense, be placed on probation for a period not to exceed
one year. Any person who is under eighteen years who purchases,
consumes, sells, serves or possesses alcoholic liquor is guilty of
a status offense, as that term is defined in section four, article
one, chapter forty-nine of this code and, upon adjudication
therefor, shall be referred to the Department of Health and Human
Resources for services, as provided in section eleven, article five
of said chapter.
(2) Nothing in this article, nor any rule or regulation of the
Commissioner, shall prevent or be deemed to prohibit any person who
is at least eighteen years of age from serving in the lawful
employment of a licensee which includes the sale and serving of
alcoholic liquor.
(3) Nothing in this subsection shall prohibit a person who is
at least eighteen years of age from purchasing or possessing
alcoholic liquor when he or she is acting upon the request of or
under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia Alcohol
Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules and regulations of
the Commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing liquor from a retail licensee, misrepresents
his or her age or who for such purpose presents or offers any
written evidence of age which is false, fraudulent or not actually
his or her own or who illegally attempts to purchase liquor from a
retail licensee is guilty of a misdemeanor and, upon conviction
thereof, shall be fined an amount not to exceed fifty dollars or
imprisoned in the county jail for a period not to exceed
seventy-two hours, or both fined and imprisoned or, in lieu of such
fine and imprisonment, may, for the first offense, be placed on
probation for a period not exceeding one year.
(c) Any person who knowingly buys for, gives to or furnishes
to anyone under the age of twenty-one to whom he or she is not
related by blood or marriage any liquor from whatever source is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed one hundred dollars or imprisoned in
the county jail for a period not to exceed ten days, or both fined
and imprisoned.
(d) No person while on the premises of a retail outlet may
consume liquor or break the seal on any package or bottle of
liquor. Any person who violates the provisions of this subsection
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed one hundred dollars or imprisoned in
the county jail for a period not to exceed ten days, or both fined
and imprisoned.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 268, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes,
Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, 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)--34.
The nays were: None.
Absent: None.
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. 268) passed with its title.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 643, Relating to taxable income of
resident estate or trust.
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 two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11-21-18 and §11-21-30 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-18. West Virginia taxable income of resident estate or
trust.
The West Virginia taxable income of a resident estate or trust
means its federal taxable income for the taxable year as defined in
the laws of the United States and section nine of this article for
the taxable year, with the following modifications:
(1) There shall be subtracted six hundred dollars as the West Virginia personal exemption of the estate or trust, and there shall
be added the amount of its federal deduction for a personal
exemption.
(2) There shall be added or subtracted, as the case may be, the
share of the estate or trust in the West Virginia fiduciary
adjustment determined under section nineteen of this article.
(3) There shall be added to federal adjusted gross income, unless
already included therein, the amount of a lump sum distribution for
which the taxpayer has elected under Section 402(e) of the Internal
Revenue Code of 1986, as amended, to be separately taxed for
federal income tax purposes: Provided, That the provisions of this
subdivision shall first be effective for taxable years beginning
after the thirty-first day of December, one thousand nine hundred
ninety.
(4) There shall be added by an electing small business trust as
defined in Section 1361(e) of the Internal Revenue Code of 1986, as
amended, which is a shareholder in one or more electing small
business corporations, the portion of the trust's income
attributable to electing small business corporation stock held by
the trust that is not included in the trust's federal taxable
income pursuant to Section 641 of the Internal Revenue Code of
1986, as amended.
(b) The amendments to this section enacted in the regular session of the Legislature in two thousand five are effective for tax years
beginning on or after the first day of January, two thousand five.
Part III. Nonresident and Part-year Residents.
§11-21-30. Computation of tax on income of nonresidents and part-year
residents.
(a) Computation of tax.
- For taxable years beginning after the
thirty-first day of December, one thousand nine hundred ninety-one,
the tax due under this article on taxable income derived from
sources in this state by a nonresident individual, estate, or trust
or by a part-year resident individual shall be calculated as
provided in this section.
(1) Taxpayer shall first calculate tax liability under this article
as if taxpayer, whether an individual, estate or trust, were a
resident of this state for the entire taxable year. When
determining tentative tax liability under this subdivision, a
nonresident shall be allowed the same deductions, exemptions and
credits that would be allowable if taxpayer were a resident
individual, estate or trust, as the case may be, for the entire
taxable year, except that no credit shall be allowed under section
twenty of this article.
(2) The amount of tentative tax determined under subdivision (1)
of this subsection shall then be multiplied by a fraction the
numerator of which is the taxpayer's West Virginia source income, determined in accordance with Part III of this article for the
taxable year, and the denominator of which is such taxpayer's
"federal adjusted gross income" for the taxable year as defined in
section nine of this article: Provided, That if this computation
produces a result that is out of all appropriate proportion to the
amount of taxpayer's West Virginia source income, the Tax
Commissioner may provide such equitable relief as the Tax
Commissioner, in his or her discretion, considers to be appropriate
under the circumstances.
(b) Special rules for estates and trusts.
- For purposes of
subdivision (1), subsection (a) of this section:
(1) The "federal adjusted gross income" of an estate or trust shall
be determined as if such estate or trust were an individual; and
(2) In the case of a trust, "federal adjusted gross income" shall
be its "federal adjusted gross income" for the taxable year
increased by the amount of any includable gain, reduced by any
deductions properly allocable thereto, upon which the tax is
imposed for the taxable year pursuant to Section 644 of the
Internal Revenue Code.
(3) When an electing small business trust as defined in Section
1361(e)(1) of the Internal Revenue Code of 1986, as amended, is a
shareholder in one or more electing small business corporations,
the portion of the trust's income attributable to electing small business corporation stock held by the trust that is not included
in the trust's federal taxable income pursuant to Section 641(c) of
that code shall be included in West Virginia taxable income of the
trust.
(c) Special rules for part-year residents.
-
(1) For purposes of subdivision (1), of subsection (a) of this
section, the "federal adjusted gross income" of a part-year
resident individual shall be taxpayer's federal adjusted gross
income for the taxable year, as defined in section nine of this
article, increased or decreased, as the case may be, by the items
accrued under subdivision (1), subsection (b), section forty-five
forty-four of this article, to the extent such items are not
otherwise included in federal adjusted gross income for the taxable
year, and decreased or increased, as the case may be by the items
accrued under subdivision (2), subsection (b) of said section
forty-five, of said subsection, to the extent such items are
included in federal adjusted gross income for the taxable year; and
(2) In computing the tax due as if taxpayer were a resident of this
state for the entire tax year, West Virginia adjusted gross income
shall include the accruals specified in subdivision (1) of this
subsection (c), with the applicable modifications described in
section forty-five forty-four of this article.
(d) Definitions.
-
(1) "Nonresident estate" means an estate of a decedent who was not
a resident of this state at the time of his or her death.
(2) "Nonresident trust" means a trust which is not a resident
trust, as defined in section seven of this article.
(3) "Part-year resident individual" means an individual who is not
a resident or nonresident of this state for the entire taxable
year.
(e) Effective date.
- (1) The provisions of this section shall
apply to taxable years beginning after the thirty-first day of
December, one thousand nine hundred ninety-one. As to taxable
years beginning prior to that date, the provisions of this article
as then in effect shall apply and be controlling, and for that
purpose, prior law is fully and completely preserved.
(2) The amendments to this section enacted in the regular session
of the Legislature in two thousand five are effective for tax years
beginning on or after the first day of January, two thousand five.;
And,
On page one, by striking out the title and substituting therefor
a new title, to read as follows:
Eng. Senate Bill No. 643--A Bill to amend and reenact §11-21-18 and
§11-21-30 of the Code of West Virginia, 1931, as amended, all
relating generally to personal income tax; providing that in
determining West Virginia taxable income of electing small business trusts, income attributable to S corporation stock held by trust
shall be included; authorizing equitable relief when statutory
computation of tax for nonresident individuals, estates and trusts
and part-year resident individuals produces result that is out of
all proportion to amount of taxpayer's West Virginia source income;
correcting erroneous cross-reference to code section concerning
part-year residents; and providing for effective date.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Senate Bill No. 643, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley,
Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
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)--34.
The nays were: None.
Absent: None.
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. 643) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
__________
The midnight hour having arrived, the President stated all
unfinished legislative business, with the exception of the budget
bill, had expired due to the time element.
A series of messages from the House of Delegates having been
received at his desk, the following communications were reported by
the Clerk:
A message from The Clerk of the House of Delegates announced that
that body had receded from its amendments to, and the passage as
amended by deletion, of
Eng. Senate Bill No. 40, Limiting time purchaser of certain real
estate at sheriff's sale may claim refund.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 166, Authorizing sale of certain land on
Buffalo Creek, Logan County.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its Senate
amended title, to take effect from passage, of
Eng. Senate Bill No. 248, Relating to requirement that technology expenditures be made in accordance with Education Technology
Strategic Plan.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its Senate
amended title, to take effect July 1, 2005, of
Eng. Com. Sub. for Senate Bill No. 348, Clarifying when audits are
required of state funds or grants; penalty.
A message from The Clerk of the House of Delegates announced that
that body had receded from its amendments to, and the passage as
amended by deletion, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 357, Authorizing Department of
Revenue promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 406, Establishing Uniform Environmental
Covenants Act.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its House
of Delegates amended title, of
Eng. Com. Sub. for Senate Bill No. 418, Relating generally to
regulation of insurance.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage, to take effect July 1,
2005, of
Eng. Com. Sub. for Senate Bill No. 419, Creating Local Government
Flexibility Act.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its Senate
amended title, of
Eng. Senate Bill No. 421, Relating to apportionment of damages in
court actions involving tortious conduct in certain cases.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its House
of Delegates amended title, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 428, Relating to
Rehabilitation Environmental Action Plan.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage, to take effect July 1,
2005, of
Eng. Com. Sub. for Senate Bill No. 450, Prohibiting compensation
of board members from receiving compensation for certain travel
days.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 463, Allowing supplemental assessment on
personal property when omitted from record books.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 473, Relating to crime of
cyber-shoplifting.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to the House of
Delegates amendments to, and the passage as amended with its Senate
amended title, to take effect July 1, 2005, of
Eng. Senate Bill No. 513, Relating to tax credits available under
Capital Company Act.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 521, Requiring state board study insuring
buildings and contents owned by county board.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 558, Relating to management and
investment of public funds.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report,
with its House of Delegates amended title, as to
Eng. Senate Bill No. 583, Relating to appealing orders from family
court to circuit court.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 585, Allowing disclosure of juvenile records
in certain cases.
A message from the Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to the House of
Delegates amendments to, and the passage as amended, of
Eng. Com. Sub. for Senate Bill No. 587, Relating to appointment of
counsel in abuse and neglect cases.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report,
with its Senate amended title, to take effect July 1, 2005, as to
Eng. Senate Bill No. 604, Establishing method for projecting
increase in net enrollment for each school district.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 703, Providing consistency in filing procedures for all organization types and cleaning up outdated
language.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report,
with its conference amended title, to take effect from passage, as
to
Eng. Com. Sub. for Senate Bill No. 717, Permitting Wetzel County
Hospital provide alternate retirement plan for new employees.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 737, Establishing time limit for licensing
board to issue final ruling.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage of
Eng. Senate Bill No. 748, Providing credit for mitigation required
as component of Army Corps of Engineers.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 752, Making supplementary appropriation of
federal funds to Department of Environmental Protection, Division
of Environmental Protection.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of
Senate Concurrent Resolution No. 42, Urging Congress provide
domestic energy policy and requesting Joint Committee on Government
and Finance study energy policy for state.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of
Senate Concurrent Resolution No. 65, Designating month of December,
2005, Legislators Back to School Month.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of
Senate Concurrent Resolution No. 74, Requesting Joint Committee on
Government and Finance study fiscal affairs of state water and
sewer utilities.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of
Senate Concurrent Resolution No. 91, Requesting Joint Committee on
Government and Finance direct Legislative Oversight Commission on
Health and Human Resources Accountability study availability and
distribution of long-term care beds in state.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2011, Relieving health care
providers of liability where an injury has resulted from a
prescribed drug or medical device.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2334, Relating to limiting child
out-of-state placements.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2476, Relating generally to
parole and parole proceedings.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2522, Relating to creating and
licensing mini-distilleries.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2523, Making it a crime for
released inmates to contact correctional employees and requiring that inmates be advised of such prohibition upon release.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2528, Relating to alternative programs for the
education of teachers.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
July 1, 2005, of
Eng. Com. Sub. for House Bill No. 2578, Increasing the ratios of
professional and service personnel to students in net enrollment.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2718, Authorizing the Department
of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2782, Increasing the number of members a
municipality may appoint to a board of park and recreation
commission from not less than three to not more than seven.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 2812, Extending the time for the
Preston County Board of Education to meet as a levying body for the
purpose of presenting a special levy election for the voters in the
county.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2816, Creating the West Virginia
Healthy Act of 2005.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect July 1, 2005, of
Eng. House Bill No. 2866, Providing for continuation of tuition and
fee payments to members after discharge from military service due
to wounds or injuries received in the line of duty.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2878, Relating to allowing the fraud unit to investigate the forgery of insurance documents.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 2937, Relating to the replacement of individual
life insurance policies and annuity contracts.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 2991, Providing criminal
penalties for aiding escape and specifying items that are unlawful
to deliver to or be possessed by individuals in custody or
confinement.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3002, Removing the thirty day deadline for
submitting party designations to be eligible to vote in the primary
election.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3014, Clarifying that mandated accident and sickness insurance benefits do not apply to limited coverage
policies, unless expressly made applicable to such policies.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3018, Relating to designation of Mountaineer
Challenge Academy as a special alternative education program.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
July 1, 2005, of
Eng. House Bill No. 3031, Prohibiting unlicensed practice of
landscape architecture.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3048, Relating to restructuring
of the hunting and fishing license system.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3049, Creating a new crime of
wanton endangerment involving the use of fire and imposing a criminal penalty for such crime.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3051, Relating to defining
certain terms relative to hunting.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 3068, Authorizing private
inspectors to conduct annual inspections of elevators in
state-owned buildings while establishing authority for the Division
of Labor to conduct over-site inspections.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3089, Adding a representative to
the trucking advisory committee and adding routes to the coal
resource transportation road system in Braxton and Webster
counties.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3094, Relating to child support and
enforcement.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3098, Expanding the prohibitions and criminal
penalties for sexual exploitation or sexual abuse of a child by a
parent, or guardian or custodian to include offenses by persons who
hold a position of trust in relation to a child.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. House Bill No. 3104, Relating to the payment of
telecommunications charges.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amended title, passage as
amended, of
Eng. Com. Sub. for House Bill No. 3138, Relating to requiring
health insurance plans to cover the cost of contraceptives.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. House Bill No. 3152, Clarifying that the Board of Risk and Insurance Management is not to provide insurance for every
property, activity or responsibility of the county boards of
education.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 3153, Establishing the crime of railroad
vandalism.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3178, Relating to domestic violence and
clarifying when permanent injunctions and other provisions may be
granted in final divorce orders.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3203, Authorizing the closure of certain
existing retirement funds for municipal policemen and firemen and
establishment of a defined contribution plan in lieu thereof.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3208, Adjusting the formula by
which the Public Service Commission distributes wireless enhanced
911 fee revenues to the counties.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, to take effect
from passage, of
Eng. House Bill No. 3236, Relating to the special reclamation tax
and special tax on coal production, providing that both of these
taxes apply to thin seam coal and providing that the special
reclamation tax subject to the West Virginia Tax Crimes and
Penalties Act and the West Virginia Tax Procedure and
Administration Act.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3280, Relating to modifying the review by the
Public Service Commission of public convenience and necessity
applications where the project has been approved by the
Infrastructure and Jobs Development Council.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3281, Relating to making it a crime to alter,
destroy, or tamper with computer equipment containing voter
registration information.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 3328, Changing the name of the
office of emergency services and specifying additional
responsibilities.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended, of
Eng. House Bill No. 3354, Secretary's authority to assess a permit
fee for well work permit, deep wells, coalbed methane wells and
reclamation fund fees.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the Senate amendments to, and the
passage as amended with its Senate amended title, of
Eng. House Bill No. 3356, Powers and duties of solid waste
management board.
On motion of Senator Chafin, the Senate adjourned until tomorrow,
Sunday, April 10, 2005, at 12:30 a.m., for an extended session to
complete action on the annual state budget, under authority of the Governor's proclamation issued April 6, 2005, extending the first
annual session of the seventy-seventh Legislature until and
including the fifteenth day of April, two thousand five, solely for
that purpose, as being the only permissive legislation within
constitutional purview.
__________