(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