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Wednesday, March 30, 2005



The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of , being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 2960, Permitting licensed restaurants to sell sealed bottles of wine produced by a member of the West Virginia Farm Wineries Association for consumption off the premises,
And reports the same back, with amendment, with the recommendation that it do pass, as amended.
 At the respective requests of Delegate Staton, and by unanimous consent, the foregoing bill was taken up for immediate consideration, read a first time and ordered to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
H. B. 3094 - Repealing the Support Enforcement Commission's ability to promulgate legislative rules, removing the provision allowing the Support Enforcement Commission to provide direct services to and individual, authorizing Commissioner to establish enforcement procedures..etc...,
H. B. 3153, Establishing the crime of railroad vandalism,
And,
H. B. 3340, Excluding certain employment-related expenses from the definition of gross income for purposes of determining child support,
And reports the same back, with amendment, bu unanimous vote of the Committee, with the recommendation that they each do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the foregoing bills were taken up for immediate consideration, read a second time and ordered to third reading with the amendments pending.
 Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 3094, H. B. 3153 and H. B. 3340) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
H. B. 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,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the foregoing bills were taken up for immediate consideration, read a second time and ordered to third reading with the right to amend.
Messages from the Senate

 A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of
S. B. 245 - " A Bill to repeal §3-8-5c of the Code of West Virginia, 1931, as amended; to amend and reenact §3-8-1, §3-8-2, §3-8-4, §3-8-7, §3-8-8 and §3-8-12 of said code; and to amend said code by adding thereto two new sections, designated §3-8-1a and §3-8-2b, all relating to regulating elections; requiring the disclosure of electioneering communications; prohibiting corporate disbursements for electioneering communications; and imposing limitations on contributions to political action committees and political organizations"; which was referred to the Committee on the Judiciary."
Resolutions Introduced

Delegates Campbell, Long, Boggs, Staton, Tabb, Border and Canterbury offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 71 - "
Amending Joint Rules of the Senate and the House of Delegates."

Resolved by the Legislature of West Virginia:
That the Joint Rules of the Senate and House of Delegates be amended by adding thereto a new rule, designated Rule 30, to read as follows:
Joint Committee on Technology
30. (a) A joint standing committee of the Senate and House, named the Joint Committee on Technology, shall continually study and investigate means and methods to develop and maintain an overall technology policy for the State of West Virginia with respect to: (1) Application of technology to free State employees from repetitive tasks so the employees may focus on more important tasks; (2) Application of technology to speed information flow and information management to achieve a faster response time to users of government services, including businesses, individuals and intergovernmental users; (3) Minimize transaction costs; and Meet the demands of constituents for use of technology. All computer and technology related legislation introduced in the Legislature shall be referred to the committee in addition to any other reference the presiding officer may designate.
(b) The committee shall consist of seven members of the Senate to be appointed by the President of the Senate and seven members of the House of Delegates to be appointed by the Speaker of the House of Delegates. If possible, no more than five of the seven members appointed by the President of the Senate and the Speaker of the House of Delegates, respectively, may be members of the same political party.
(c) The committee shall make a continuing study and investigation of all aspects of technology and endeavor to stimulate, encourage, promote, and assist in the development of technology in the state, and related public policies. The powers and duties of the committee include, but are not limited to, the following:
(1) Review the annual reports and work plans submitted by the governor's office of technology and the West Virginia science and technology advisory council concerning the development of access to a statewide public telecommunications network for distance learning, telemedicine, and universal access for governmental entities, e-government, e-commerce and other issues relating to technology, either initiated by those agencies or the committee, or referred to it by either house of the Legislature for study or review;
(2) Exercise leadership to coordinate for the various committees of the Legislature the various activities, studies, and planning activities of the Legislature which relate to any aspect of technological development;
(3) Evaluate the impact of existing statutes and proposed legislation related to technology in the state;
(4) Utilize the governor's office of technology and other resources to investigate, research, and consider issues related to technology as may be requested by the Legislature and make recommendations to the Legislature; and,
(6) Encourage research and development in technology.
(7) Inventory and consult with existing technology businesses and enterprises as to ways to foster increased business activity and employment opportunities.
(8) Working in cooperation with the governor's office of technology and the department of administration, the committee shall recommend guidelines to be used by the Legislature, state government, and state political subdivisions for technology related purchasing.
(d) The committee shall hold meetings at such times and places as it may designate. The President of the Senate shall appoint a cochair of the committee from the Senate members and the Speaker of the House of Delegates shall appoint a cochair of the committee from the House of Delegates members. When the Legislature is not in session, the committee shall meet and conduct its business as a joint committee.
When the Legislature is in session, in addition to joint meetings, the members of either house may meet separately from members of the other house to conduct committee business concerning technology related legislation introduced or originated in that house. When the members meet separately, they may function as other committees of that house. As far as practicable, relevant information, including actuarial letters or notes, gathered by members meeting separately from the other house shall be sent to the cochair of the other house if it is considering the same or similar legislation.
By Mr. Speaker, Mr. Kiss, and Delegates, Ron Thompson, Mahan, Sumner and Susman offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 72 - "Requesting the Division of Highways to name the bridge on County Rt. 13, Arnett, Raleigh County, West Virginia at the end of Posey Saxon Road approximately four tenths of one mile from State Route 3, the "Sergeant Billy Ray Holmes Memorial Bridge."
Whereas, Sgt. Holmes was born on June 12, 1948 in Beckley and graduated from Marsh Fork High School in Raleigh County in 1966 and entered the Army in January, 1967; and
Whereas, Sgt. Holmes finished basic training at Fort Benning, Georgia, and was stationed at Fort Lewis, Washington before joining his brother in Vietnam; and
Whereas, Sgt. Holmes was killed in combat in Vietnam on July 3, 1968; and
Whereas, Sgt. Holmes was the commander of an armored personnel carrier when the vehicle was attacked by the Viet Cong; and
Whereas, The entire crew left the carrier and took cover in nearby bushes but Sgt. Holmes went back to the vehicle and started to fire a .50 caliber machine gun; and
Whereas, During this fight, Sgt. Holmes was hit in the stomach by an armor piercing shell, which was about twelve inches in length and five inches in diameter at the largest point; and
Whereas, Sgt. Holmes died within moments of being shot; and
Whereas, A few days before his death, Sgt. Holmes sustained shrapnel wounds when another personnel carrier that he commanded was destroyed by Viet Cong fire; and
Whereas, Sgt. Holmes was awarded the Purple Heart and the Bronze Star for his service to his country; and
Whereas, Through his untiring efforts and professional ability, Sgt. Holmes consistently obtained outstanding results; and
Whereas, Sgt. Holmes was quick to grasp the implications of new problems with which he was faced as a result of the ever changing situations inherent in a counterinsurgency operation and to find ways and means to solve those problems; and
Whereas, It is only fitting and proper that the Legislature and people of the State of West Virginia honor one of its native sons and fallen hero by naming the bridge on County Rt. 13, Arnett, Raleigh County, West Virginia at the end of Posey Saxon Road approximately four tenths of one mile from State Route 3, the "Sergeant Billy Ray Holmes Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the bridge on County Rt. 13, Arnett, Raleigh County, West Virginia at the end of Posey Saxon Road approximately four tenths of one mile from State Route 3, the "Sergeant Billy Ray Holmes Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to cause to be fabricated signs, to be posted at both ends of the above-designated bridge, with words, printed in bold and prominent fashion, proclaiming the "Sergeant Billy Ray Holmes Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby requested to provide a certified copy of this Resolution to family of Sergeant Billy Ray Holmes.
Delegate Stalnaker offered the following resolution, which was read by the Clerk:
 H. R. 33 - "Memorializing Fred L. Mulneix, dedicated public servant, avid gardener, pastor, and former member of the House of Delegates from Lewis County."
Whereas, Fred L. Mulneix was born on March 29, 1928 in St. Mary's, West Virginia. The son of the late Earl and Frances Trautman Mulneix, he was raised in Butler, Pennsylvania, where he graduated from high school in 1949.
He received his bachelor's degree from West Virginia Wesleyan College in 1953 and then attended Westminster Theological Seminary, completing a course of study in the School of Christian Study, which he followed up with graduate work at both West Virginia University and Marshall University.
On October 5, 1951, he married the former Carolyn June Lough. Together they had four children: Jon, of Weston, Debra Wyman, Cinda Jamison and Kimberly Ann Mulneix, all of whom survive him and reside in Weston. He is also survived by seven grandchildren, two great grandchildren, six brothers and three sisters.
Fred Mulneix served as pastor at several churches in Lewis, Gilmer, Harrison, Marion and Taylor counties, and during his life he worked as a teacher, bricklayer and contractor.
Elected to the West Virginia House of Delegates, he served as a member from 1968 until 1974, serving as Minority Whip during a part of that time.
He also served as a member of the Board of Directors for the Central District Mental Health Center in Clarksburg and on the Lewis County Fire Board, was a member of the Lions Club and was the 2004 Strawberry King.
In addition to gardening and raising strawberries, Fred enjoyed golfing, hunting, writing poetry and dabbling in oil painting.
His life came to its close at the age of seventy-six; therefore, be it
Resolved by the House of Delegates:
That the House of Delegates pauses to pay tribute to the life and accomplishments of Fred L. Mulneix, and expresses its sadness on taking note of his death and hereby conveys heartfelt sympathy to his surviving wife Carolyn, and to his surviving children, grandchildren, brothers, sisters and friends; and, be it
Further Resolved, That the Clerk of the House of Delegates prepare certified copies of this resolution for the family of Fred L. Mulneix.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. R. 33) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Petitions

Delegate Stevens presented a petition, signed by fifty-nine residents of Tucker County, requesting salary increases for teachers and school service personnel, pension reform, and urging necessary funding for PEIA and for rural school districts; which was referred to the Committee on the Finance.
Delegates Overington, Blair, Doyle, Duke, Roberts, Tabb, Trump and Wysong presented a petition, signed by numerous residents of the Eastern Panhandle, in opposition to the proposed cuts to the Title XIX Waiver program; which was referred to the Committee on Finance.
Consent Calendar

The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed with him for the removal of bills from the Consent Calendar to the House Calendar:
H. B. 2795, on first reading, Consent Calendar, to the House Calendar, by Delegate Staton.
H. B. 2822, on first reading, Consent Calendar, to the House Calendar, by Delegate Michael.
H. B. 3155, on first reading, Consent Calendar, to the House Calendar, by Delegate Michael.
And,
H. B. 3361, on first reading, Consent Calendar, to the House Calendar, by Delegate Staton.
Third Reading

H. B. 2012, Providing a salary supplement for providers of medicaid eligible services in the public schools; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-5b. Medicaid eligible children; school health services advisory committee; medicaid service provider salary supplement.

(a) The state board shall become a medicaid provider and seek out medicaid eligible students for the purpose of providing medicaid and related services to students eligible under the medicaid program and to maximize federal reimbursement for all services available under the Omnibus Budget Reconciliation Act of one thousand nine hundred eighty-nine, as it relates to medicaid expansion and any future expansions in the medicaid program for medicaid and related services for which state dollars are or will be expended: Provided, That the state board may delegate this provider status and subsequent reimbursement to regional educational service agencies (RESA) and/or county boards: Provided, however, That annually the state board shall report to the Legislature the number and age of children eligible for medicaid, the number and age of children with medicaid coverage, the types of medicaid eligible services provided, the frequency of services provided, the medicaid dollars reimbursed; and the problems encountered in the implementation of this system and that this report shall be on a county by county basis and made available no later than the first day of January, one thousand nine hundred ninety-two, and annually thereafter.
(b) The state board shall appoint and convene a school health services advisory committee to advise the secretary of health and human resources and the state superintendent on ways to improve the ability of regional education service agencies, local school boards, and department of health and human resources employees to provide medicaid eligible children with all the school-based medicaid services for which they are eligible and to ensure that the school-based medicaid service providers bill for and receive all the medicaid reimbursement to which they are entitled. The committee shall consist of at least the following individuals: The person within the Department of Education responsible for coordinating the provision of and billing for school-based medicaid services in schools throughout the state, who shall provide secretarial, administrative and technical support to the advisory committee; the person within the Department of Health and Human Resources responsible for coordinating the enrollment of medicaid eligible school children throughout the state; two representatives of regional education services agencies who are experienced with the process of billing medicaid for school-based health services; two Department of Health and Human Resources employees responsible for supervising employees, two persons jointly appointed by the Secretary of Health and Human Resources and the State Superintendent; and one representative of the governor's task force on school health.
The school health services advisory committee shall meet in the first instance at the direction of the State Superintendent, select a chairperson from among its members, and meet thereafter at the direction of the chairperson. The committee shall report its findings and recommendations to the state board and Department of Health and Human Resources, which findings shall then be included in the report to the Legislature by the state board and Department of Health and Human Resources provided for in subsection (a) of this section.
All actual and necessary travel expenses of the members of the committee shall be reimbursed by the member's employing agency, for those members not employed by a state agency, the member's actual and necessary travel expenses shall be paid by the state board. All such expenses shall be reimbursed in the same manner as the expenses of state employees are reimbursed.
(c) From all medicaid reimbursements received pursuant to this section for services provided after the first day of July, two thousand five, seven percent of the amount of the reimbursements received shall be reserved and utilized by county boards for the purposes of providing a salary supplement for providers of medicaid eligible services in the public schools pursuant to section four, article four, chapter eighteen-a of this code.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.

§18A-4-4. Minimum salary schedule for teachers having specialized training; county salary supplement for providers of medicaid eligible services.

(a) The state Board of Education shall establish the minimum salary schedule for teachers where specialized training may be required for vocational, technical and adult education, and such other permits as may be authorized by said the board.
(b) On and after the first day of July, one thousand nine hundred eighty-five, any vocational industrial, technical, occupational home economics, or health occupations teacher who is required to hold a vocational certificate and is paid a salary equivalent to the amount prescribed for "A.B. + 15" training classification in the state minimum salary schedule for teachers under section two of this article shall, upon application therefor, receive advanced salary classification and be entitled to increased compensation on and after such date in respect to and based upon additional semester hours, approved by the state Board of Education and completed either prior to or subsequent to such date. All such hours earned must be from a regionally accredited institution of higher education.
The advanced salary classification shall be as follows:
(1) Those who have earned fifteen such additional semester hours shall receive an amount equal to that prescribed for the "M.A." training classification under section two of this article.
(2) Those who have earned thirty such additional semester hours shall receive an amount equal to that prescribed for the "M.A. + 15" training classification under section two of this article.
(3) Those who have earned forty-five such additional semester hours shall receive an amount equal to that prescribed for the "M.A. + 30" training classification under section two of this article.
(4) Those who have earned sixty such additional semester hours shall receive an amount equal to that prescribed for the "M.A. + 45" training classification under section two of this article.
Any such teacher who has a permanent vocational certificate and who has earned or earns a bachelor's degree prior or subsequent to the issuance of such certificate shall be entitled to receive the amount prescribed for the "M.A. + 30" training classification upon application: Provided, That any such teacher who has a permanent vocational certificate and who has earned or earns fifteen graduate hours prior or subsequent to the issuance of such certificate shall be entitled to receive the amount prescribed for the "M.A. + 45" training classification upon application therefor, such advanced salary to take effect immediately upon qualification therefor: Provided, however, That any vocational teacher receiving the amount prescribed for the "M.A. + 30" training classification under prior enactments of this section who have not been issued a permanent vocational certificate shall not have such salary reduced as a result of this section: Provided further, That any teacher with a vocational certificate and under contract for the school year one thousand nine hundred eighty-five--eighty-six who has earned a bachelor's degree prior to the end of such school year shall be entitled to receive the amount prescribed for the "M.A. + 30" training classification, upon application therefor, for the school year beginning on the first day of July, one thousand nine hundred eighty-six, and thereafter.
(c) No teacher holding a valid professional certificate shall incur a salary reduction resulting from assignment out of the teacher's field by the superintendent, with the approval of the county board, under any authorization or regulation of the state board.
(d) From the percentage of medicaid reimbursements received by the county board and reserved for utilization for a medicaid service provider salary supplement pursuant to section five-b, article two, chapter eighteen of this code, each county board shall semi-annually distribute a salary supplement to employees of the county who provide medicaid eligible services. The amount of the supplement due an employee shall be determined by dividing the seven percent reserve established in section five-b, article two, chapter eighteen received during the six-month period, by the number of employees in the job title who provided medicaid services during the period.".
Having been engrossed, the bill was then read a third time.
Com. Sub. for H. B. 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.
H. B. 2307, Establishing threshold quantities of certain controlled substances to trigger prima facie evidence of intent to deliver if possessed by an individual; on third reading, coming up in regular order, was read a third time.
Com. Sub. for H. B. 2371, Authorizing collaborative pharmacy practice agreements between pharmacists and physicians and specify requirements for the agreements; on third reading, coming up in regular order, with and amendment pending, was reported by the Clerk.
On motion of Delegate Amores, the bill was amended on page three, line twenty-four, following the word "of", by striking out the phrase "Osteopathic Medicine" and inserting in lieu thereof the word "Osteopathy", and by repeating that same amendment at the following locations:
On page eleven, line one-hundred eighty-one, following the second word "of".
On page eleven, line one hundred ninety-two, following the word "of".
On page seventeen, line thirty-nine, following the word "of".
On page eighteen, line fifty-five, following the second word "of".
And,
On page nineteen, line two, following the word "of".
Having been engrossed, the bill was then read a third time.
H. B. 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; on third reading, coming up in regular order, with and amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 22. RETIREMENT BENEFITS GENERALLY; POLICEMEN'S PENSION AND RELIEF FUND; FIREMEN'S PENSION AND RELIEF FUND; PENSION PLANS FOR EMPLOYEES OF WATERWORKS SYSTEM, SEWERAGE SYSTEM OR COMBINED WATERWORKS AND SEWERAGE SYSTEM.

§8-22-20. Minimum standards for actuarial soundness.
The board of trustees for each pension and relief fund shall have regularly scheduled actuarial valuation reports prepared by a qualified actuary. All of the following standards must be met:
(a) An actuarial valuation report shall be prepared at least once every three years commencing with the later of: (1) The first day of July, one thousand nine hundred eighty-three; or (2) three years following the most recently prepared actuarial valuation report: Provided, That this most recently prepared actuarial valuation report meets all of the standards of this section.
(b) The actuarial valuation report shall consist of, but is not limited to, the following disclosures: (1) The financial objective of the fund and how the objective is to be attained; (2) the progress being made toward realization of the financial objective; (3) recent changes in the nature of the fund, benefits provided, or actuarial assumptions or methods; (4) the frequency of actuarial valuation reports and the date of the most recent actuarial valuation report; (5) the method used to value fund assets; (6) the extent to which the qualified actuary relies on the data provided and whether the data was certified by the fund's auditor or examined by the qualified actuary for reasonableness; (7) a description and explanation of the actuarial assumptions and methods; and (8) any other information the qualified actuary feels is necessary or would be useful in fully and fairly disclosing the actuarial condition of the fund.
(c) (1) After the thirtieth day of June, one thousand nine hundred ninety-one, and thereafter, the financial objective of each municipality shall not be less than to contribute to the fund annually an amount which, together with the contributions from the members and the allocable portion of the state premium tax fund for municipal pension and relief funds established under section fourteen-d, article three, chapter thirty-three of this code and other income sources as authorized by law, will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than forty years: Provided, That in the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-one, the municipality may elect to make its annual contribution to the fund utilizing an alternative contribution in an amount not less than: (i) One hundred seven percent of the amount contributed for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety; or (ii) an amount equal to the average of the contribution payments made in the five highest fiscal years beginning with the 1984 fiscal year whichever is greater: Provided, however, That contribution payments in subsequent fiscal years under this alternative contribution method may not be less than one hundred seven percent of the amount contributed in the prior fiscal year: Provided further, That in order to avoid penalizing municipalities and to provide flexibility when making contributions, municipalities using the alternative contribution method may exclude a contribution made in any one year in excess of the minimum required by this section to amortize any actuarial deficiency over a period not to exceed the forty-year period described in this subsection when calculating the one hundred seven percent minimum contribution for the following year: Provided further, That prior to utilizing this alternative contribution methodology the actuary of the fund shall certify in writing that the fund is projected to be solvent under the alternative contribution method for the next consecutive fifteen-year period. For purposes of determining this minimum financial objective: (1) The value of the fund's assets shall be determined on the basis of any reasonable actuarial method of valuation which takes into account fair market value; and (2) all costs, deficiencies, rate of interest, and other factors under the fund shall be determined on the basis of actuarial assumptions and methods which, in aggregate, are reasonable (taking into account the experience of the fund and reasonable expectations) and which, in combination, offer the qualified actuary's best estimate of anticipated experience under the fund: And provided further, That any municipality which elected the alternative funding method under this section and which has an unfunded actuarial liability of not more than twenty-five percent of fund assets, may, beginning the first day of September, two thousand three, elect to revert back to the standard funding method, which is to contribute to the fund annually an amount which is not less than an amount which, together with the contributions from the members and the allocable portion of the state premium tax fund for municipal pension and relief funds established under section fourteen-d, article three, chapter thirty-three of this code and other income sources as authorized by law, will be sufficient to meet the normal cost of the fund and amortize any actuarial deficiency over a period of not more than forty years, beginning from the first day of July, one thousand nine hundred ninety-one.
(2) No municipality may anticipate or use in any manner any state funds accruing to the police or firemen's pension fund to offset the minimum required funding amount for any fiscal year.
(3) Notwithstanding any other provision of this section or article to the contrary, each municipality shall contribute annually to the fund an amount which may not be less than the normal cost, as determined by the actuarial report.
(d) For purposes of this section the term "qualified actuary" means only an actuary who is a member of the society of actuaries or the American academy of actuaries. The qualified actuary shall be designated a fiduciary and shall discharge his or her duties with respect to a fund solely in the interest of the members and member's beneficiaries of that fund. In order for the standards of this section to be met, the qualified actuary shall certify that the actuarial valuation report is complete and accurate and that in his or her opinion the technique and assumptions used are reasonable and meet the requirements of this section of this article.
(e) The cost of the preparation of the actuarial valuation report shall be paid by the fund.
(f) Notwithstanding any other provision of this section, for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-one, the municipality may calculate its annual contribution based upon the provisions of the supplemental benefit provided for in this article enacted during the one thousand nine hundred ninety-one regular session of the Legislature."
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 2650, Relating to beef industry self-improvement assessment program,
Com. Sub. for H. B. 2718 , Authorizing the Department of Commerce to promulgate legislative rules,
Com. Sub. for H. B. 2855, Retaining seniority for professional personnel who voluntarily terminate employment,
Com. Sub. for H. B. 2877, Providing procedure for removal of county, district or municipal officers,
Com. Sub. for H. B. 2878,Relating to allowing the fraud unit to investigate the forgery of insurance documents,
And,
H. B. 2937, Relating to the replacement of individual life insurance policies and annuity contracts.
H. B. 2939, Relating to the Federal Cash Management Act; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill 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 §12-1-12b; that §12-3A-3 of said code be amended and reenacted; and that §44- 1-28 of said code be amended and reenacted, all to read as follows:
"CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 1. STATE DEPOSITORIES.
§12-1-12b. Cash Management Improvement Act; administration; reports.

(a) The Cash Management Improvement Act of 1990, Public Law 101-453, October 24, 1990, 31 U.S.C. Section 6501 et. seq. (CMIA) and regulations, as amended, establishes requirements and techniques, including calculations, for the receipt and disbursement of federal funds by states. The authorized official and representative of the State of West Virginia for the CMIA is the State Treasurer.
(b) In administering the CMIA, the State Treasurer is authorized to do all things reasonably necessary, including without limitation, entering into agreements with, negotiating settlements with, refunding any interest due and satisfying any liability to the United States Treasury in accordance with the CMIA.
(c) Periodically, the State Treasurer shall transfer to the "Federal Cash Management Fund", which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the Treasurer estimates is needed to make refunds in accordance with the CMIA. After each annual settlement with the United States Treasury, the State Treasurer shall transfer to the State General Revenue Fund any moneys remaining in the Federal Cash Management Interest Fund for the period just settled.
(d) The State Treasurer shall also transfer periodically to the "Federal Cash Management - Administration Fund," which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the Treasurer determines is needed to pay for the costs of administering the CMIA. The State Treasurer may pay the costs he or she incurs in administering the CMIA from the Federal Cash Management-Administration Fund.
(e) All state spending units shall cooperate fully with the State Treasurer in accumulating all the necessary data elements to fully comply with the CMIA.
(f) The State Treasurer shall send quarterly reports on the activities involving the CMIA to the Governor, Auditor, Secretary of Revenue and Joint Committee on Government and Finance.
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
The state auditor and the state treasurer shall implement electronic commerce capabilities for each of their offices to facilitate the performance of their duties under this code. The state treasurer shall competitively bid the selection of vendors needed to provide the necessary banking, investment and related goods and services, and the provisions of article one-b, chapter five, and articles three and seven, chapter five-a of this code shall not apply, unless requested by the state auditor or state treasurer.
A record, an authentication, a document or a signature received, issued or used by the auditor, or the treasurer shall be considered an original and may not be denied legal effect on the ground that it is in electronic form. The auditor and treasurer may accept a document for the receipt or disbursements of moneys requiring certification, notarization or verification in an electronic format without the certification, notarization or verification.
The head of each spending unit is responsible for adopting and implementing security procedures to ensure adequate integrity, security, confidentiality, and auditability of the business transactions of his or her spending unit when utilizing electronic commerce.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.

ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-28. Payment of small sums due employees to distributees of decedents upon whose estates there have been no qualifications.

(a) When there is due from the state of West Virginia, any of its political subdivisions, the United States, or any employer, as pension or money allowed for burial expenses, or money, wages or salary due from any employer to a deceased employee, upon whose estate there has been no qualification, a sum of not exceeding one thousand dollars, it shall be lawful for the state of West Virginia, any of its political subdivisions, the United States, or such employer, after one hundred and twenty days from the death of said person to whom such money is due, to pay said sum to his or her surviving consort, if any; if none such, then to the distributees of the said decedent under the laws of the state of West Virginia, whose receipt therefor shall be a full discharge and acquittance to all persons whomsoever on account of such sum.
(b) When the state treasurer holds property in accordance with article eight, chapter thirty-six of this code on behalf of a decedent whose estate has no qualification or is closed and the amount of the property is five thousand dollars or less, the treasurer may remit the property to the surviving spouse of the decedent, if any; and if no spouse survives the decedent, then to the distributees of the decedent under the laws of the State of West Virginia. Payment in accordance with this section is in full discharge and acquittance to all persons whomsoever on account of the property."
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 3019, Relating to recognizing the Appalachian Education Initiative promoting the role of art education in public schools,
H. B. 3034, Adding Public Service Commission motor carrier inspectors as law-enforcement officers who may be victims of the crimes of malicious assault, unlawful assault, battery and simple assault upon a law-enforcement officer,
H. B. 3045, Relating to the creation and modification of public service districts,
Com. Sub. for H. B. 3051, Relating to defining certain terms relative to hunting,
Com. Sub. for H. B. 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,
H. B. 3092, Adding the counties of Mercer and Raleigh as participating members of the Hatfield-McCoy Regional Recreational Authority,
And,
H. B. 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.
H. B. 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, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, amending the bill on page one, section twelve, line twenty-one, by striking the works "Biannually, on or before the fifteenth day of July, and on or before the fifteenth day of December" and inserting in lieu thereof the following:
"Beginning on the fifteenth day of December, two thousand five, and every second year thereafter".
Having been engrossed the bill was then read a third time.
Com. Sub. for H. B. 3130, Requiring local boards of health to conduct inspections of all elementary and secondary schools; on third reading, coming up in regular order, was read a third time.
H. B. 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.
Com. Sub. for H. B. 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.
H. B. 3212, Creating the felony offense of intimidation of and retaliation against informants who provide information to law enforcement officers, and establishing related criminal penalties; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section twenty-seven, line four, following the word "officer", by inserting the words "or any governmental agency with investigative powers".
On motion of Delegate Amores the bill was amended on page three, section twenty-seven, line twenty-seven, following the word "officer", by inserting the words "or any governmental agency with investigative powers".
Having been engrossed, the bill was then read a third time.
Com. Sub. for H. B. 3214,Relating to the administration of polygraph examinations for risk assessment and treatment purposes to sex offenders who are on probation or parole; on third reading, coming up in regular order, was read a third time.
H. B. 3217, Authorizing magistrates to impose home confinement for certain non-violent offenders in lieu of a bail bond; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section three, line thirteen, following the word "confinement", by inserting a comma and the words "as presently established in that county" and a comma.
Having been engrossed, the bill was then read a third time.
H. B. 3281,Relating to making it a crime to alter, destroy, or tamper with computer equipment containing voter registration information, ; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 9. OFFENSES AND PENALTIES.
§3-9-25. Alteration, destruction, etc., of computer equipment containing voter registration information; disclosure of confidential voter registration information.

(a) Any person who knowingly, willfully and without authorization from the Secretary of State or a county clerk, directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to tamper with, delete, alter, damage or destroy any computer or computer network that contains voter registration files, records or data or who knowingly introduces, directly or indirectly, a computer contaminant into any computer, computer program or computer network that contains voter registration files, records or data, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in a regional jail for not more than six months, or both.
(b) Any person who knowingly, directly or indirectly, accesses, attempts to access, or causes to be accessed any voter registration files, records or data stored on or in a computer owned by the Secretary of State, a county commission or municipality, without authorization shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five thousand dollars or confined in a regional jail not more than six months, or both.
(c) In any criminal prosecution under subsection (b) against an employee of the Secretary of State, a county commission or a municipality, it shall not be a defense (1) that the defendant had reasonable grounds to believe that he or she had authorization to access the data merely because of his or her employment, or (2) that the defendant could not have reasonably known he or she did not have authorization to access the data."
Having been engrossed, the bill was then read a third time.
H. B. 3282,Relating to taking pictures of a non-consenting individual in public and private places; on third reading, coming up in regular order, was read a third time.
H. B. 3293, Establishing residential treatment programs for regional jail inmates who are abusers of alcohol and other drugs; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill 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 §31-20A-1, §31-20A-2, §31-20A-3, §31-20A-4, §31-20A-5, §31-20A-6, §31- 20A-7, §31-20A-8, §31-20A-9, §31-20A-10, §31-20A-11, §31-20A-12, §31-20A-13, §31-20A-14 and §31-20A-15, all to read as follows:
"ARTICLE 20A. REGIONAL JAIL AUTHORITY ALCOHOL AND SUBSTANCE ABUSE TREATMENT ACT.
§31-20A-1. Short title.
This article may be cited as "The Regional Jail Authority Alcohol and Substance Abuse Treatment Act.".
§31-20A-2. Legislative findings.
The Legislature finds as follows:
(1) That West Virginia's prisons, regional jails and other correctional facilities are housing large numbers of nonviolent offenders that far exceed prior inmate populations which have previously existed in this State;
(2) That this increased inmate population has not been properly anticipated and has found the State ill-equipped to deal with its accompanying problems;
(3) That although the State has completed large-scale construction projects for prisons, regional jails and other correctional facilities, it has not kept pace with the burgeoning correctional populations;
(4) That because capital and operational costs have soared in an expanding correctional system, there is a need for more effective and less expensive approaches to sanctioning and supervising nonviolent offenders;
(5) That because of the conflicting trends of escalating demand and dwindling resources, it is in the best interests of the citizens of the State for the Legislature to develop and evaluate cost-effective correctional options which reduce reliance on incarceration while enhancing the reintegration of nonviolent offenders into the community;
(6) That the abuse of alcohol and other drugs is a significant cause of crimes, a major impediment to the rehabilitation of persons convicted of crimes, and a prime factor in the rate of recidivism;
(7) That a large majority of the inmates of this State's regional jails are persons who are alcohol or drug abuse offenders;
(8) That the time during which alcohol or drug abuse offenders are in custody presents a unique opportunity to provide them with treatment; and
(9) That jail-based residential alcohol and drug treatment programs, early release programs that include intensive reentry services and supervision, and combinations of these and other programs can substantially reduce the reliance on incarceration as the sole or primary means of sanctioning nonviolent offenders.
§31-20A-3. Applicability of definitions.
For purposes of this article, the words or terms explicitly defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.
§31-20A-4. Abuser defined.
"Abuser" means a person who overindulges in, and is dependent on an addictive substance, especially alcohol or other drugs.
§31-20A-5. Alcohol or drug abuse offender defined.
"Alcohol or drug abuse offender" means a person convicted of a criminal offense directly or indirectly involving the person's use or consumption of alcohol or other drugs.
§31-20A-6. Assessment defined.
"Assessment" means a comprehensive assessment for alcohol or other drug abuse treatment. It is a thorough evaluation of the individual, using multiple procedures and sources of information, to establish the presence or absence of a diagnosable disorder or disease and lay the clinical foundation for treatment. Assessment shall include the use of the Addiction Severity Index (ASI), available from the National Institute on Drug Abuse.
§31-20A-7. Regional Jail Authority defined.
"Regional Jail Authority" or "Authority" means the West Virginia Regional Jail and Correctional Facilities Authority created pursuant to the provisions of section three, article twenty, chapter thirty-one of this code.
§31-20A-8. Residential treatment program defined.
"Residential treatment program" or "treatment program" means a jail-based program established and utilized by the Regional Jail Authority for incarcerated alcohol or drug abusing offenders in the Regional Jail setting. The focus of a residential treatment program is to prepare the participating inmates for continued treatment on the outside, giving the participants the message that the program is the beginning of a treatment commitment, and that continuing care will be arranged upon release.
§31-20A-9. Screening defined.
"Screening" means a process used to determine whether an individual is a likely candidate for participation in a jail-based residential treatment program. As used in this article, screening is used to identify individuals who:
(1) Have alcohol or other drug abuse problems that may warrant treatment;
(2) Have infectious diseases including, but not limited to, tuberculosis, HIV/AIDS, or sexually transmitted diseases; and
(3) Fit within the target population of the treatment program in terms of criminal justice criteria, such as current charges pending, or prior criminal records.
§31-20A-10. Establishment of residential treatment programs in Regional Jails.
(a) Within the limitations of available appropriations and other funding sources, the Regional Jail Authority shall establish one or more pilot projects, aimed at developing and implementing residential treatment programs in the regional jails of this state.
§31-20A-11. General program requirements.
A residential treatment program established pursuant to this article will provide individual and group treatment activities for misdemeanor offenders confined in a regional jail. A residential treatment program shall:
(1) Last at least three months;
(2) To the extent possible, segregate alcohol or drug abusers who are participating in treatment from the general inmate population, so as to permit the establishment of a supportive social environment within the jail that will allow abusers to participate in a structured program and form supportive bonds with others in treatment and with treatment staff;
(3) Focus on the inmates' abuse of alcohol or other drugs;
(4) Develop the inmates' cognitive, behavioral, social, vocational, and other skills to solve alcohol or drug abuse and related problems; and
(5) Be science-based and effective.
§31-20A-12. Goals of a residential treatment program.
Goals of a residential treatment program within a Regional Jail are intended to prepare an offender who is an abuser of alcohol or other drugs for treatment and a return to the community by:
(1) Providing education about recovery;
(2) Increasing the offender's self-awareness regarding the abuse of alcohol or other drugs and the detrimental effects that the abuse of alcohol or other drugs has on an abuser individually, on an abuser's family, on an abuser's employment and income status; and on an abuser's other societal relationships;
(3) Providing an understanding of the need for treatment;
(4) Increasing awareness about solutions and resources; and
(5) Generating treatment motivation.
§31-20A-13. Design and planning of treatment programs in Regional Jails.
(a) Treatment programs established by the Regional Jail Authority for alcohol and drug abusers shall be specifically designed for use in a regional jail facility.
(b) Planning and design of a treatment program shall give consideration to:
(1) The problems created by short stays, varying lengths of stay, frequent disruptions, overcrowding and understaffing of regional jails;
(2) Programs in other jurisdictions that have been shown to be effective in jails or other correctional facilities by producing positive results in such categories as reduced recidivism;
(3) The recognition that an effective treatment program developed for a Regional Jail population will address familial, vocational, and social issues that will help support treatment goals, minimize the risk of relapse, and decrease the risk of criminal behavior; and
(4) Funding that is or may be available from legislative appropriations, federal grants, private foundations or entities, and other sources.
§31-20A-14. Elements of designing and planning.
Design and planning of a treatment program in a Regional Jail facility shall include consideration of the following elements:
(1) Program admission criteria and procedures that may be in addition to those set forth in this article;
(2) Screening of incoming Regional Jail inmates;
(3) Assessment of each participating Regional Jail inmate, designed to determine the drug and alcohol abuse and addiction needs of a participant and to address other issues essential to a participant's successful reintegration into the community;
(4) Recognition that flexible programming and the involvement of courts and other community agencies and providers are critical to any preparation for joint program strategies and interactions among the justice system, the alcohol and drug abuse treatment system, and the community;
(5) Determination of which categories of care and components of treatment may be critical to engaging individuals in treatment;
(6) Division of curricula into flexible units, recognizing that no single approach to treatment works for all persons;
(7) Supervision of the participant's progress in treatment;
(8) Guidance to help incarcerated abusers make the transition from being inmates to being participants in alcohol and drug abuse treatment programs when they become available;
(9) Staffing and cross-system liaison;
(10) Management of information; and
(11) Program monitoring.
§31-20A-15. Consideration for early release.
(a) An inmate who was sentenced to a term of confinement in a regional jail, who is determined to be an abuser of alcohol or other drugs, and who successfully completes the residential alcohol or drug abuse treatment program during his or her current commitment may be eligible, in accordance with the provisions of this section, for early release by a period not to exceed thirty days.
(b) The following categories of inmates are not eligible for early release:
(A) Pretrial inmates;
(B) Contractual boarders (for example, federal or military inmates); or
(C) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses;
(c)Eligible inmates currently enrolled in a residential drug abuse treatment program shall automatically be considered for early release.
(d)(1) Except as specified in subdivisions (2) and (3) of this subsection, an inmate who is approved for early release may receive a reduction of sentence of up to thirty days.
(2) If the inmate has less than thirty days to serve after completion of all required transitional services, the amount of reduction may not exceed the amount of time left on service of sentence."
Having been engrossed, the bill was then read a third time.
H. B. 3306, Allowing fees charged for requests for information from the central abuse registry to be used for criminal record keeping; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-6. Fees.
The criminal identification bureau may charge, and any requester shall pay a user charge of ten dollars for each request for information made by a requester to the central abuse registry. In order to expedite requests by requesters, the criminal identification bureau may establish a procedure permitting service providers to deposit funds with the bureau in anticipation of requests. Fees pursuant to this section shall be paid into a special account in the State Treasury to be expended for registry purposes and criminal record keeping: Provided, That for and after the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-eight, all expenditures shall be made in accordance with appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for central abuse registry and criminal record keeping purposes may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. For purposes of this section, the term 'criminal record keeping' means the compiling of fingerprints, photographs, criminal disposition reports, uniform crime report statistics and other relevant data regarding the arrest, conviction, incarceration and post conviction status of criminal violators and sex offenders. 'Criminal record keeping' does not include the creation of any data.".
Having been engrossed, the bill was then read a third time.
H. B. 3308 , Eliminating the provision that allowed private clubs segregated on the basis of race or color to obtain a license to sell alcoholic beverages; on third reading, coming up in regular order, was read a third time.
H. B. 3309, Exempting Mental-Health Retardation Centers from payment of the privilege tax and providing that Mental-Health Retardation Centers are covered by the Board of Risk and Insurance Management without the requirement to pay a premium; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §11-13a-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows;
ARTICLE 13A. SEVERANCE TAXES.
§11-13a-2. Definitions.
(a) General rule. -- When used in this article, or in the administration of this article, the terms defined in subsection (b), (c) or (d) of this section shall have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used or by specific definition.
(b) General terms defined. -- Definitions in this subsection apply to all persons subject to the taxes imposed by this article.
(1) "Business" includes all activities engaged in, or caused to be engaged in, with the object of gain or economic benefit, direct or indirect, and whether engaged in for profit, or not for profit, or by a governmental entity: Provided, That "business" does not include services rendered by an employee within the scope of his or her contract of employment. Employee services, services by a partner on behalf of his or her partnership and services by a member of any other business entity on behalf of that entity are the business of the employer or partnership, or other business entity as the case may be, and reportable as such for purposes of the taxes imposed by this article.
(2) "Corporation" includes associations, joint-stock companies and insurance companies. It also includes governmental entities when and to the extent such governmental entities engage in activities taxable under this article.
(3) "Delegate" in the phrase "or his delegate", when used in reference to the tax commissioner, means any officer or employee of the state tax division of the department of tax and revenue duly authorized by the tax commissioner directly, or indirectly by one or more redelegations of authority, to perform the function mentioned or described in this article or regulations promulgated thereunder.
(4) "Fiduciary" means and includes a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.
(5) "Gross proceeds" means the value, whether in money or other property, actually proceeding from the sale or lease of tangible personal property, or from the rendering of services, without any deduction for the cost of property sold or leased or expenses of any kind.
(6) "Includes" and "including", when used in a definition contained in this article, shall not be deemed to exclude other things otherwise within the meaning of the term being defined.
(7) "Partner" includes a member of a syndicate, group, pool, joint venture or other organization which is a "partnership" as defined in this section.
(8) "Partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any privilege taxable under this article is exercised and which is not within the meaning of this article a trust or estate or corporation. "Partnership" includes a limited liability company which is treated as a partnership for federal income tax purposes.
(9) "Person" or "company" are herein used interchangeably and include any individual, firm, partnership, mining partnership, joint venture, association, corporation, trust or other entity, or any other group or combination acting as a unit, and the plural as well as the singular number, unless the intention to give a more limited meaning is declared by the context.
(10) "Sale" includes any transfer of the ownership or title to property, whether for money or in exchange for other property or services, or any combination thereof. "Sale" includes a lease of property, whether the transaction be characterized as a rental, lease, hire, bailment or license to use. "Sale" also includes rendering services for a consideration, whether direct or indirect.
(11) "Service" includes all activities engaged in by a person for a consideration which involve the rendering of a service as distinguished from the sale of tangible personal property: Provided, That "service" does not include: (A) Services rendered by an employee to his or her employer under a contract of employment; (B) contracting; or (C) severing or processing natural resources.
(12) "Tax" means any tax imposed by this article and, for purposes of administration and collection of such tax, it includes any interest, additions to tax or penalties imposed with respect thereto under article ten of this chapter.
(13) "Tax commissioner" or "commissioner" means the tax commissioner of the state of West Virginia or his or her delegate.
(14) "Taxable year" means the calendar year, or the fiscal year ending during such calendar year, upon the basis of which a tax liability is computed under this article. In the case of a return made under this article, or regulations of the tax commissioner, for a fractional part of a year, the term "taxable year" means the period for which such return is made.
(15) "Taxpayer" means any person subject to any tax imposed by this article.
(16) "This code" means the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(17) "This state" means the state of West Virginia.
(18) "Withholding agent" means any person required by law to deduct and withhold any tax imposed by this article or under regulations promulgated by the tax commissioner.
(c) Specific definitions for producers of natural resources. --
(1) "Barrel of oil" means forty-two U.S. gallons of two hundred thirty-one cubic inches of liquid at a standard temperature of sixty degrees Fahrenheit.
(2) "Coal" means and includes any material composed predominantly of hydrocarbons in a solid state.
(3) "Cubic foot of gas" means the volume of gas contained in one cubic foot at a standard pressure base of fourteen point seventy-three pounds per square inch (absolute) and a standard temperature of sixty degrees Fahrenheit.
(4) "Economic interest" for the purpose of this article is synonymous with the economic interest ownership required by Section 611 of the Internal Revenue Code in effect on the thirty-first day of December, one thousand nine hundred eighty-five, entitling the taxpayer to a depletion deduction for income tax purposes: Provided, That a person who only receives an arm's length royalty shall not be considered as having an economic interest.
(5) "Extraction of ores or minerals from the ground" includes extraction by mine owners or operators of ores or minerals from the waste or residue of prior mining only when such extraction is sold.
(6) "Gross value" in the case of natural resources means the market value of the natural resource product, in the immediate vicinity where severed, determined after application of post production processing generally applied by the industry to obtain commercially marketable or usable natural resource products. For all natural resources, "gross value" is to be reported as follows:
(A) For natural resources severed or processed (or both severed and processed) and sold during a reporting period, gross value is the gross proceeds received or receivable by the taxpayer.
(B) In a transaction involving related parties, gross value shall not be less than the fair market value for natural resources of similar grade and quality.
(C) In the absence of a sale, gross value shall be the fair market value for natural resources of similar grade and quality.
(D) If severed natural resources are purchased for the purpose of processing and resale, the gross value is the amount received or receivable during the reporting period reduced by the amount paid or payable to the taxpayer actually severing the natural resource. If natural resources are severed outside the state of West Virginia and brought into the state of West Virginia by the taxpayer for the purpose of processing and sale, the gross value is the amount received or receivable during the reporting period reduced by the fair market value of natural resources of similar grade and quality and in the same condition immediately preceding the processing of the natural resources in this state. (E) If severed natural resources are purchased for the purpose of processing and consumption, the gross value is the fair market value of processed natural resources of similar grade and quality reduced by the amount paid or payable to the taxpayer actually severing the natural resource. If severed natural resources are severed outside the state of West Virginia and brought into the state of West Virginia by the taxpayer for the purpose of processing and consumption, the gross value is the fair market value of processed natural resources of similar grade and quality reduced by the fair market value of natural resources of similar grade and quality and in the same condition immediately preceding the processing of the natural resources.
(F) In all instances, the gross value shall be reduced by the amount of any federal energy tax imposed upon the taxpayer after the first day of June, one thousand nine hundred ninety-three, but shall not be reduced by any state or federal taxes, royalties, sales commissions or any other expense. (G) For natural gas, gross value is the value of the natural gas at the wellhead immediately preceding transportation and transmission.
(H) For limestone or sandstone quarried or mined, gross value is the value of such stone immediately upon severance from the earth.
(7) "Mining" includes not merely the extraction of ores or minerals from the ground, but also those treatment processes necessary or incidental thereto.
(8) "Natural resources" means all forms of minerals including, but not limited to, rock, stone, limestone, coal, shale, gravel, sand, clay, natural gas, oil and natural gas liquids which are contained in or on the soils or waters of this state and includes standing timber.
(9) "Processed" or "processing" as applied to:
(A) Oil and natural gas shall not include any conversion or refining process; and
(B) Limestone or sandstone quarried or mined shall not include any treatment process or transportation after the limestone or sandstone is severed from the earth.
(10) "Related parties" means two or more persons, organizations or businesses owned or controlled directly or indirectly by the same interests. Control exists if a contract or lease, either written or oral, is entered into whereby one party mines or processes natural resources owned or held by another party and the owner or lessor participates in the severing, processing or marketing of the natural resources or receives any value other than an arm's length passive royalty interest. In the case of related parties, the tax commissioner may apportion or allocate the receipts between or among such persons, organizations or businesses if he determines that such apportionment or allocation is necessary to more clearly reflect gross value.
(11) "Severing" or "severed" means the physical removal of the natural resources from the earth or waters of this state by any means: Provided, That "severing" or "severed" shall not include the removal of natural gas from underground storage facilities into which the natural gas has been mechanically injected following its initial removal from earth: Provided, however, That "severing" or "severed" oil and natural gas shall not include any separation process of oil or natural gas commonly employed to obtain marketable natural resource products.
(12) "Stock" includes shares in an association, joint-stock company or corporation.
(13) "Taxpayer" means and includes any individual, partnership, joint venture, association, corporation, receiver, trustee, guardian, executor, administrator, fiduciary or representative of any kind engaged in the business of severing or processing (or both severing and processing) natural resources in this state for sale or use. In instances where contracts (either oral or written) are entered into whereby persons, organizations or businesses are engaged in the business of severing or processing (or both severing and processing) a natural resource but do not obtain title to or do not have an economic interest therein, the party who owns the natural resource immediately after its severance or has an economic interest therein is the taxpayer.
(d) Specific definitions for persons providing health care items or services. -- "Behavioral health services" means services provided for the care and treatment of persons with mental illness, mental retardation, developmental disabilities or alcohol or drug abuse problems in an inpatient, residential or outpatient setting, including, but not limited to, habilitative or rehabilitative interventions or services and cooking, cleaning, laundry and personal hygiene services provided for such care: Provided, That gross receipts derived from providing behavioral health services that are included in the provider's measure of tax under article twenty-seven of this chapter shall not be include included in that provider's measure of tax under this article. The amendment to this definition in the year two thousand four is intended to clarify the intent of the Legislature as to the activities that qualify as behavioral health services, and this clarification shall be applied retrospectively to the effective date of the amendment to this section in which the definition of "behavioral health services" was originally provided as enacted during the first extraordinary session of the Legislature in the year one thousand nine hundred ninety-three: Provided, That beginning on the first day of July, two thousand five, comprehensive community mental retardation centers, as designated by the Secretary of the Department of Health and Human Services, are no longer included in the definition of behavioral health services for the purposes of this article."
Having been engrossed, the bill was then read a third time.
The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 3354, Secretary's authority to assess a permit fee for well work permit, deep wells, coalbed methane wells and reclamation fund fees,
H. B. 3355, Unemployment compensation generally,
H. B. 3359, Relating to filling the positions and extra duty assignments of the absent school bus operators,
And,
H. B. 3360, Requiring the IS & C Director to create and maintain an information systems disaster recovery system.
Delegates Border and Perdue requested to be excused from voting on the passage of H. B. 2371 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
On the passage of the bills, the yeas and nays were taken (Roll No. 263), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Fragale and Moore.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (H. B. 2012, Com. Sub. for H. B. 2163, H. B. 2307, Com. Sub. for H. B. 2371, H. B. 2457, H. B. 2650, Com. Sub. for H. B. 2718, Com. Sub. for H. B. 2855, Com. Sub. for H. B. 2877, Com. Sub. for H. B. 2878, H. B. 2937, H. B. 2939, H. B. 3019, H. B. 3034, H. B. 3045, H. B. 3051, Com. Sub. for H. B. 3068, H. B. 3092, H. B. 3098, H. B. 3125, Com. Sub. for H. B. 3130, H. B. 3151, Com. Sub. for H. B. 3178, H. B. 3212, Com. Sub. for H. B. 3214, H. B. 3217, H. B. 3281, H. B. 3282, H. B. 3293, H. B. 3306 H. B. 3308, H. B. 3309, H. B. 3354, H. B. 3355, H. B. 3359 and H. B. 3360) passed.
An amendment to the title of H. B. 2457, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2457 -- "A Bill to amend and reenact §8-22-20 of the code of West Virginia, 1931, as amended, relating to modifying the basis for calculating the alternate method of annual contribution required by municipalities into the Policemen's and Firemen's Pension and Relief Fund in certain circumstances."
An amendment to the title of H. B. 2939, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2939 -- "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §12-1-12b; to amend and reenact §12-3A-3 of said code; and to amend and reenact §44-1-28, all relating generally to the administration of moneys held by the state; establishing specific authorization for the State Treasurer to continue as the authorized official and representative as part of the cash management duties; allowing the auditor and treasurer to accept electronic submittal of documents without certification, notarization or verification under certain circumstances; and authorizing the treasurer to remit property to heirs under certain circumstances and establishing effect of such remittance.".
An amendment to the title of H. B. 3125, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 3125 -- "A Bill to amend and reenact §11-13J-12 of the code of West Virginia, 1931, as amended, relating to 'The Neighborhood Investment Program Act'; requiring an independent review of the Neighborhood Investment Program every two years; and extending the termination date of the act.".
An amendment to the title of Com. Sub. for H. B. 3212, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for H. B. 3212 -- "A Bill to amend and reenact §61-5-27 of the code of West Virginia, 1931, as amended, all relating to the crimes of intimidation or retaliation against informants; establishing a misdemeanor offense for first offense intimidation of an informant; establishing felony for second and subsequent offense of intimidation of an informant; establishing the felony offense of retaliation against an informant; defining "informant" for the purposes of these offenses; establishing related criminal penalties."
An amendment to the title of H. B. 3281, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 3281 -- "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §3-9-25, relating to the crime of altering, destroying, or tampering with computer equipment containing voter registration information; accessing or attempting to access confidential voter registration information and defenses."
An amendment to the title of H. B. 3293, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 3293- "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-20A-1, §31-20A-2, §31-20A-3, §31-20A-4, §31-20A-5, §31- 20A-6, §31-20A-7, §31-20A-8, §31-20A-9, §31-20A-10, §31-20A-11, §31-20A-12, §31-20A-13, §31-20A-14 and §31-20A-15, all relating to establishing residential treatment programs for regional jail inmates who are abusers of alcohol and other drugs."
An amendment to the title of H. B. 3306, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
The Committee on Finance moves to amend the title of the bill to read as follows:
H. B. 3306 -- "A Bill to amend and reenact §15-2C-6 of the Code of West Virginia, 1931, as amended, relating to fees charged for requests for information from the central abuse registry; providing that fees charged for requests for information from the central abuse registry may be used for criminal record keeping; and providing definitions."
An amendment to the title of H. B. 3309, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 3309 -- "A Bill to amend and reenact §11-13a-2 of the Code of West Virginia, 1931, as amended, relating to exempting comprehensive mental retardation centers from the provider tax.".
Delegate Staton moved that H. B. 2012 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 300), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Fragale, Moore and Tabb.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2012) takes effect July 1, 2005.
Delegate Staton moved that Com. Sub. for H. B. 2718 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 301), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Fragale, Hall and Moore.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2718) takes effect from its passage.
Delegate Staton moved that Com. Sub. for H. B. 2855 take effect from it passage.
On this question, the yeas and nays were taken (Roll No. 302), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Beach and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2855) takes effect from its passage. Delegate Staton moved that H. B. 2939 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 303), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Beach and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2939) takes effect from its passage. Delegate Staton moved that H. B. 3151 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 304), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Beach and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3151) takes effect July 1, 2005.
Delegates Louisos and Stephens requested that the Clerk record them as voting "nay" on the passage of H. B. 3359.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence therein.
Second Reading

The following bills, on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading.
H. B. 2546, Relating to underage possession of nonintoxicating beer and alcoholic liquor,
H. B. 2808, Relating to adding a magistrate to those serving Raleigh County,
And,
H. B. 3213, Creating the offenses of malicious assault, unlawful assault, battery and recidivism of battery, assault on a driver, conductor, captain or other person in charge of any vehicle used for public conveyance,
First Reading

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
H. B. 3108, Increasing the focus of regional educational service agencies on school improvement,
H. B. 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,
H. B. 3219, Amending the provisions of the West Virginia Victims of Crime Compensation Act to make it clear that persons holding authority with respect to the victim by power of attorney or other authority have the authority to assert claims,
Special Calendar


Unfinished Business

S. C. R. 54 , Requesting Division of Highways name bridge located on Route 19 between Flat Top Post Office and Egeria Road "Mills/Hatcher Memorial Bridge"; coming up in regular order as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

Com. Sub. for H. B. 2011, Relieving health care providers of liability where an injury has resulted from a prescribed drug or medical device; on third reading, coming up in regular order, was read a third time.
Delegates Ellem, Houston, Long and Walters requested to be excused from voting on the passage of Com. Sub. for H. B. 2011 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 305), and there were--yeas 71, nays 28, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Argento, Barker, Beach, Brown, Butcher, Caputo, DeLong, Eldridge, Ellem, Hatfield, Houston, Hrutkay, Hunt, Leach, Longstreth, Louisos, Manchin, Marshall, Martin, Miley, Spencer, Stephens, Talbott, Thompson, Rick, Tucker, Walters, Webster and Wells.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2011) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2111 , Authorizing paramedics to practice in hospital emergency rooms; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 306), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Fragale and Moore.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2111) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 2184, Providing criminal penalties for negligently or carelessly shooting and wounding or killing a human being while hunting under the influence of alcohol or drugs; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 307), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2184) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2224, Creating a health care providers lien; on third reading, coming up in regular order, was read a third time.
On motion of Delegate Staton, the bill was then postponed until the completion of first reading.
Com. Sub. for H. B. 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.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 308), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane, Overington, Sobonya, Stevens and Walters.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2266) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2296, Increasing service of process fees and providing that the fees collected be deposited in the West Virginia deputy sheriff retirement fund,; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 309), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Crosier, Fragale and Moore.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2296) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 310), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Moore.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2296) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2334, Relating to limiting child out-of-state placements; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegate DeLong, the bill was amended on page three, section thirty-four, line twenty-four, following the word "Assurance" by striking the word "and" and inserting a comma; and
On page three, section thirty-four, line twenty-five, following the word "Services" by adding the words "and the executive director of the prosecuting attorney's institute".
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 311), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2334) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2365, Relating to school board member disclosure and voting obligations; unauthorized individual actions of board members; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 312), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2365) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2669,Authorizing miscellaneous boards and agencies to promulgate legislative rules; on third reading, coming up in regular order, was read a third time.
Delegate Lane requested to be excused from voting on the passage of Com. Sub. for H. B. 2669 under the provisions of House Rule 49, stated that he had assisted in years past in drafting some of the rules.
The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 313), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2669) passed.
On motion of Delegate Mahan, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 2669 - - "A Bill to amend and reenact article 9, chapter 64 of the code of West Virginia, 1931, as amended; 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; disapproving the Board of Acupuncture to promulgate a legislative rule relating to the dispensing of materia medica, formulary and legend drugs; authorizing the Department of Agriculture to promulgate a legislative rule relating to animal disease control; authorizing the Department of Agriculture to promulgate a legislative rule relating to the inspection of meat and poultry; authorizing the Department of Agriculture to promulgate a legislative rule relating to commercial feed; authorizing the Board of Chiropractic Examiners to promulgate a legislative rule relating to the chiropractic practice; authorizing the Contractor Licensing Board to promulgate a legislative rule relating to the West Virginia contractor licensing act; relating to authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the Board; authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of professional limited liability companies; authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of dental corporations; authorizing the Family Protection Services Board to promulgate a legislative rule relating to perpetrator intervention programs licensure for correctional institutions; authorizing the Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to law enforcement training standards; authorizing the Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to the protocol for law enforcement response to domestic violence; disapproving the Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to motor vehicle stop data collection standards for the study of racial profiling; authorizing the Hatfield-McCoy Regional Recreation Authority to promulgate a legislative rule relating to use of facilities; authorizing the Division of Information Services and Communications to promulgate a legislative rule relating to telecommunications payments by spending units; authorizing the Board of Examiners of Land Surveyors to promulgate a legislative rule relating to minimum standards for the practice of land surveying in West Virginia; authorizing the Board of Examiners for Licensed Practical Nurses to promulgate a legislative rule relating to fees for services rendered by the Board; authorizing the Public Service Commission to promulgate a legislative rule relating to statewide telephone information and referral 211 service; authorizing the Radiologic Technology Board of Examiners to promulgate a legislative rule relating to the Board; authorizing the Board of Examiners for Registered Professional Nurses to promulgate a legislative rule relating to fees for services rendered by the Board; authorizing the Secretary of State to promulgate a legislative rule relating to agencies designated to provide voter registration services; authorizing the Board of Examiners for Speech-Language Pathology and Audiology to promulgate a legislative rule relating to speech-language pathology and audiology assistants; authorizing the State Treasurer to promulgate a legislative rule relating to procedures for fees in collections by charge, credit or debit card or by electronic payment; authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to organization and operation; authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to certified animal euthanasia technicians; and authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to a schedule of fees."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 314), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2669) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2723, Authorizing the Department of Environmental Protection to promulgate legislative rules; on third reading, coming up in regular order, with restricted right to amend, was reported by the Clerk.
Delegate Mahan moved to amend the bill on page eight, section two, line nine following the word "authorized" by inserting a period and striking the remainder of the section; which did not prevail.
Mr. Speaker, Mr. Kiss, and Delegates Doyle, Staton, Mahan, Manchin, Caputo and DeLong requested that the Clerk record them as voting "Yea" on the foregoing amendment.
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 315), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Fragale and Manchin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2723) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 316), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Manchin.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2723) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2781, Relating to annexation of unincorporated territory; on third reading, coming up in regular order, was read a third time.
Delegates Lane and Trump requested to be excused from voting on the passage of Com. Sub. for 2781 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they was a member of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 317), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Howard.
Absent And Not Voting: Fragale, Leggett, Long and Manchin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2781) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2825, Continuing the tax credit provided under article three-t, chapter eleven of this code for physicians who practice Obstetrics and Gynecology; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 318), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Leggett.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2825) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2889, Transferring authority to propose rules relating to water quality standards from the Environmental Quality Board to the Department of Environmental Protection; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 2963, Clarifying the allowance of excess levy elections at primary elections and to remove language which conflicts with article ten, section eleven of the West Virginia Constitution; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 319), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Leggett.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2963) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 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; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 320), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Carmichael, Ellem, Hamilton, Sobonya and Stevens.
Absent And Not Voting: Fragale and Leggett.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2980) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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 amendment pending, was reported by the Clerk. An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
That §12-8-1, §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8-7, §12-8-8, §12-8-9, §12- 8-10, §12-8-11, §12-8-12, §12-8-13, §12-8-14 and §12-8-16 of the code of West Virginia, 1931, as amended, be repealed; that §5-5-3 of said code 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 and §5-10-44 of said code, be amended and reenacted; that §5-10A-2 and 5-10A-3 of said code, be amended and reenacted; that said code be further amended by adding thereto a new section, designated §5-10A-11; that said code be further amended by adding thereto a new article containing §12-8A-1, §12-8A-2, §12-8A-3, §12-8A-4, §12- 8A-5, §12-8A-6, §12-8A-7, §12-8A-8, §12-8A-9, §12-8A-10, §12-8A-11, §12-8A-12, §12-8A-13, §12-8A-14, §12-8A-15 and §12-8A-16; that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code, be amended and reenacted; 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; and that said code be further amended by adding thereto three new sections, designated §15-2-25b, §15- 2-31a and §15-2-31b; 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 further amended by adding thereto three new sections, designated §15- 2A-11a, §15-2A-11b and §15-2A-21; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7A-23a, §18-7A- 25, §18-7A-26 and §18-7A-34 of said code, be amended and reenacted; 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 further amended by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; and that said code be further amended by adding thereto a new article containing §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, 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, 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, article ten, chapter five of this code, and: Provided further, 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 (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.
(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 have final power to determine the period.
(7) The board is empowered to 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 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 such 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 firefighter; 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 firefighter 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 entitled to an annuity computed according to section twenty-two of this article, as that section was in force as of the date of his or her separation from the employ of a participating public employer: Provided, That he or she does not withdraw his or her accumulated contributions from the members' deposit fund: Provided, however, That on and after the first day of July, two thousand two, any person who becomes a new member of this retirement system shall, in qualifying for retirement hereunder, have five or more years of service, all of which years shall be actual, contributory ones. His or her annuity shall begin the first day of the calendar month next following the month in which his or her application for same is filed with the Board of Trustees on or after his or her attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has ten or more years of credited service in force and who has attained age fifty-five as of the date of his or her separation, may, prior to the effective date of his or her retirement, but not thereafter, elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her date of separation and his or her attainment of age sixty-two years and payable throughout his or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has twenty or more years of credited service in force may elect to receive the actuarial equivalent of his or her deferred retirement annuity as a reduced annuity commencing on the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated by the Board, any member who has thirty or more years of credited service in force, at least three of which are contributing service, and who elects to take early retirement, which for the purposes of this subsection means retirement prior to age sixty, whether an active employee or a separated employee at the time of application, shall be entitled to the full computation of annuity according to section twenty-two of this article, as that section was in force as of the date of retirement application, but with the reduced actuarial equivalent of the annuity the member would have received if his or her benefit had commenced at age sixty when he or she would have been entitled to full computation of benefit without any reduction.
(e) Notwithstanding any of the other provisions of this section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, any member of the retirement system may retire with full pension rights, without reduction of benefits, if he or she is at least fifty-five years of age and the sum of his or her age plus years of contributing service and limited credited service, as defined in section two of this article, equals or exceeds eighty. 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 March one, 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. §5-10-23. Terminal payment following retirement.
For the purposes of this section, the term "accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a member. This includes, without limitation: (a) Benefits paid to the member as an annuity; (b) any lump sum distributions paid to the member or to any other person on account of the member's rights to benefits from the plan; (c) survivor benefits paid to any person or persons on account of the member's rights to benefits from the plan; and (d) any other distributions on account of the member's rights to benefits from the plan whether they are paid in the nature of a refund of contributions, interest on contributions, lump sum distributions, or annuity type benefits. The amounts counted will be the amounts actually paid without regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated employee contributions" means all money the member has contributed to the plan, whether the form of the contribution was after tax deductions from wages, before tax deductions from wages, direct remittance by the member to repay contributions and interest previously distributed and direct remittance by the member to pay imputed contributions for periods which were not subject to contributions but may be counted for benefit purposes under the plan. The term accumulated employee contributions does not include any amount credited under the provisions of the plan as interest on member contributions.
For the purposes of this section, the term "member's account" means the excess of the accumulated employee contributions over the accumulated net benefit payments at any point in time and the term "member" includes retirant. (a) This section provides for the payment of the balance in the a retired member's account in the event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully exhausted. The expiration of such rights to benefits would be on the occasion of 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 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, 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 the said retirant refuse to submit to such 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 the retirant complies+. Should such refusal continue for one year, all his the retirant's rights in and to his the annuity may be revoked by the board. If, upon such medical examination of a disability retirant, the said 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 retired and his disability annuity shall terminate: Provided, That the report of the said physician is concurred in by the board the 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 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 said member had: (1) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A provided for in section twenty-four of this article; and (3) nominated his or her disabled child as beneficiary. As an alternative to annuity option A, A member or former member with ten or more years of credited service, who does not leave surviving him or her a spouse or a disabled child, may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of credited service, or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies; and (2) leaves a surviving spouse, the surviving spouse shall immediately receive an annuity computed in the same manner in all respects as if the said member had: (1) Retired the day preceding the date of his or her death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A provided for in section twenty-four of this article; and (3) nominated his or her surviving spouse as beneficiary. However, the surviving spouse shall have the right to waive the annuity provided for in this section: Provided, That he or she executes a valid and notarized waiver on a form provided by the retirement Board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the retirement Board, the member or former member, shall may nominate a beneficiary who has an insurable interest in the member's or former member's life. As an alternative to annuity option A, the member or former member may elect to have the preretirement death benefit paid as a return of accumulated contributions in a lump sum amount to any beneficiary or beneficiaries he or she chooses in the event a waiver, as provided for in this section, has been presented to and accepted by the retirement Board.
(c) In the event any member who has ten or more years of credited service or any former member with ten or more years of credited service and who is entitled to a deferred annuity, pursuant to section twenty-one of this article: (1) Dies without leaving surviving him or her a spouse; but (2) leaves surviving him or her an infant child or children; and (3) does not have a beneficiary nominated as provided in subsection (a) of this section, the infant child or children shall be entitled to an annuity to be calculated as follows: The annuity reserve shall be calculated as though the member had retired as of the date of his or her decease and elected a straight life annuity and the amount of the annuity reserve shall be paid in equal monthly installments to said member's infant child or children until the child or children attain age twenty-one or sooner marry or become emancipated; however, in no event shall any child or children receive more than two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of the member and the amount of the annuity shall remain constant during the period of payment. The annual amount of the annuities payable by this section shall not exceed sixty percent of the deceased member's final average salary.
(d) In the event any member or former member does not have ten or more years of credited service, no preretirement death annuity may be authorized, owed or awarded under this section.
§5-10-44. Correction of errors.
Should any change or employer error in the records of any participating public employer or the retirement system result in any person receiving from the system more or less than he 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, chapter five of this code; 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 department of public safety, 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 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 four 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 subdivisions (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 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 subdivisions (1) or (2); or
(ii) Having been indicted or having been charged in an information for such crime, he or she was granted immunity from prosecution for the same; or
(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 Department of Public Safety; 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 notice:
(1) If more than one year has two years have elapsed since the judgment of conviction upon which such 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 complete upon mailing and a completed receipt shall constitute proof of the receipt thereof. 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 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 same to the executive director of the Board, including with the report the indictment, plea agreement and any order finding the defendant guilty.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.

ARTICLE 8A. PENSION OBLIGATION BONDS.
§12-8A-1. Short title.
This article shall be known and may be cited as the "Pension Obligation Bond Act."
§12-8A-2. Declaration of policy; legislative findings; legislative intent.

The Legislature finds and declares that the Legislature has established a number of pension systems, including the Death, Disability and Retirement Fund of the Department of Public Safety 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. This article provides for the redemption of the unfunded actuarial accrued liability of each pension system through the issuance of bonds for the purpose of: (1) Providing for the safety and soundness of the pension systems; and (2) to realize savings over the remaining term of the amortization schedules of the unfunded actuarial accrued liabilities and thereby achieve budgetary savings.
§12-8A-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 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 Obligation Bond Fund" means the special account in the state treasury created pursuant to subsection (a), section eight of this article.
(11) "Pension obligation bond 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.
(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) "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 benefits are earned.
(19)"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.
§12-8A-4. Issuance of bonds; determination of unfunded actuarial accrued liability.

(a) Upon approval by the voters of this state of the constitutional amendment authorizing the issuance of pension obligation bonds, the Governor shall have the power, 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 fund all or a portion of the unfunded actuarial accrued liability, such 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 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) five billion 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.
(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.
(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.
§12-8A-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 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 or she 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, including any discount thereon, 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 downgrade 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 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 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 executive order or established pursuant to any indenture authorized by such 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 personally liable with respect to payment of any pension liability redemption payments.
(f) 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 co-bond 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 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.
§12-8A-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 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 and covenant for the redemption of bonds and provide the terms and conditions of such 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 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 consent and prescribe the manner in which such consent may be given.
§12-8A-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 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 the amount of the unfunded actuarial accrued liability provided for by such bonds.
(b) From time to time 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 pursuant to law, as adjusted by the deposit of the proceeds of bonds issued pursuant to this article.
§12-8A-8. Creation of pension obligation bond fund; disbursements to pay pension obligation bond payments.

(a) There is hereby created a special account in the State Treasury to be administered by the State Treasurer, which shall be designated and known as the "Pension Obligation Bond 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 obligation bond payments. All funds deposited to the credit of the Pension Obligation Bond 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 Obligation Bond 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 obligation bond payments to be appropriated for the next fiscal year in order to pay in full when due all pension obligation bond payments that will become due during the next fiscal year. Such certification shall include the amount and due date of each such pension obligation bond payment. All moneys appropriated by the Legislature in accordance with a certification made pursuant to this subsection shall be deposited into the Pension Obligation Bond Fund.
(c) The State Treasurer shall pay to the trustee under the trust indenture or agreement executed by the Governor all pension obligation bond payments as and when due. Such 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 obligation bond 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.
§12-8A-9. Refunding bonds.
Subject to the provisions of the outstanding bonds issued under this article and subject to the provisions of this article, the Governor shall have the power to refund any outstanding bonds, whether the obligation refunded represents principal or interest, in whole or in part, at any time.
Refunding bonds shall mature at such time or times, which shall not exceed the longest original term of the bonds as issued, as the Governor shall determine by executive order issued by the Governor, which 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.
§12-8A-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 a direct and general obligation of the State of West Virginia; that the pension obligation bond 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 obligation bond 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 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 ten consecutive fiscal years following the date the increase in benefits or new benefits becomes 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 not to exceed ten years.
§12-8A-11. Legal remedies of obligation holders.
Any obligation holder, except to the extent that the rights given by this article may be restricted by the executive order authorizing the issuance of the bonds or by the trust indenture or agreement authorized in such executive order, may by civil action, mandamus or other proceeding, protect and enforce any rights granted under the laws of this State, granted under this article, or granted by the executive order or by the trust indenture or agreement authorized in such executive order, and may enforce and compel the performance of all duties required by this article, by the executive order or by the trust indenture or agreement authorized in such executive order.
§12-8A-12. Nature of bonds; legal investments.
(a) The bonds issued under the provisions of this article shall be and have all the qualities of negotiable instruments under the uniform commercial code of this State and shall not be invalid for any irregularity or defect in the proceedings for the issuance thereof and shall be incontestable in the hands of bona fide purchasers or holders thereof for value.
(b) Notwithstanding any other provision of this code, the bonds issued pursuant to this article are securities in which all public officers and bodies of this state, including the investment management board, all municipalities and other political subdivisions of this state, all insurance companies and associations and other persons carrying on an insurance business, including domestic for life and domestic not for life insurance companies, all banks, trust companies, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations and investment companies, all administrators, guardians, executors, trustees and other fiduciaries and all other persons whatsoever who are authorized to invest in bonds or other obligations of the State may properly and legally invest funds, including capital, in their control or belonging to them.
§12-8A-13. Exemption from taxation.
All bonds issued under the provisions of this article and the income therefrom shall be exempt from taxation by the State of West Virginia, or by any county, school district or municipality thereof, except inheritance, estate and transfer taxes.
§12-8A-14. Supersedure.
It is the intent of the Legislature that in the event of any conflict or inconsistency between the provisions of this article and any other law, to the extent of the conflict or inconsistency, the provisions of this article shall be enforced and the provisions of the other law shall be of no effect.
§12-8-15. Effective Date.
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.
§12-8A-16. Severability.
If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article and, to this end, the provisions of this article are hereby declared to be severable.
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 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 article ten-d, chapter five of this code. 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) of 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 become due and payable under the terms of the loan or after such 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 to the contrary, the loan program authorized by this section shall comply with the provisions of Section 72(p)(2) and Section 401 of the Internal Revenue Code and the federal regulations issued thereunder. 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 Section 401 of the Internal Revenue Code; (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 Section 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 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.
(b) There shall be deducted from the monthly payroll of each member of the division of public safety Department and paid into such 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 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 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 retired under any of the provisions of this section before he or she shall have attained the age of fifty years, payment of monthly installments of the amount of retirement award to such 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 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.
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 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.
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 entitled to and receive credit on the minimum period of service required by law for retirement pay from the service of the Department of public safety 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 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 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 entitled to and receive credit on the minimum period of service required by law for retirement pay from the service of the Department of public safety for a period equal to the full time he or she has or shall, pursuant to such commission, enlistment, induction or call, have served with said 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 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 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 appertaining at the time of such 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 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 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 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 not yet entered retirement status on the basis of age and service and who becomes partially been or shall become physically or mentally permanently 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 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 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 entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member; or until the member attains the age of fifty; or until such disability shall sooner terminate, 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 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 such 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 member was or shall be engaged in the performance of his or her duties as a member of the Department, division, to the extent that such member is or shall be incapacitated ever to engage in any gainful employment such member shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments during the lifetime of such member or until such disability shall sooner terminate, 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 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 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 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 that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the Superintendent shall, at the request of such disabled member, refer such 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 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 member shall be retired by the Retirement Board. Such member shall be entitled to receive annually and there shall be paid to such 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 disability shall sooner terminate, 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 member, at the time of such retirement under the terms of this section, shall have served twenty years or longer as a member of the division Department, such member shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and Retirement Fund in equal monthly installments, commencing on the date such member shall be retired and continuing during the lifetime of such 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 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 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 physician or physicians shall be submitted in writing to the Consolidated Public Retirement Board for its consideration. If, from such report or from such report and hearing thereon, the Retirement Board shall be of opinion and find that such disabled member shall have recovered from such disability to the extent that he or she is able to perform adequately the duties of a law-enforcement officer, a member of the division 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, the Board shall be of the opinion and find that the disabled member shall have 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 of a law-enforcement officer, required as a member of the division 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 such 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) A member of the Fund who has served fifteen or more years as an active member of the West Virginia State Police before filing an application for disability benefits under this article and who is found by the Board to be totally disabled as the direct and proximate result of cardiovascular disease not present at the time of the member's entry examination by the West Virginia State Police is presumed to have incurred the disability as a result of the member's duties as a member of the West Virginia State Police. This presumption is rebuttable by a preponderance of the evidence that the member's cardiovascular disease is not a direct and proximate result of the member's duties as a member of the West Virginia State Police.
(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 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.
(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 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 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 entitled to receive free of cost to such member and retain as his or her separate property one complete standard uniform prescribed by section nine of this article: Provided, That such 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 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 or she shall be of opinion that the public safety shall require, may recall to active duty during such period as the Superintendent shall determine, any member who shall be retired under the provisions of section twenty-seven of this article, provided the consent of such member to reassume duties of active membership shall first be had and obtained. When any member in retirement shall reassume status of active membership such member, during the period such member shall remain in active status, shall not be entitled to receive retirement pay or benefits, but in lieu thereof, shall be entitled to receive that rate of salary and allowance pertinent to the rank or grade held by such member when retired. When such member shall be 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 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.

The surviving spouse or 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 such member was or shall be engaged in the performance of his or her duties as a member of the division Department, or if said member shall die 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 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.
In addition thereto such surviving spouse shall be entitled to receive and there shall be paid to such person one hundred dollars monthly for each dependent child or children. If such 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.
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 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 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 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 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.
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.

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 Department, has died or shall die 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 Death, Disability and Retirement Fund to the surviving spouse of such member during his or her lifetime, or until such time as said 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 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 entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
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 discharged by order of the Superintendent or shall otherwise terminate employment with the division Department shall, 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 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 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 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 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.
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 the Fund out of the annual appropriation for the division Department.

(b) 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 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.
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. In no event may the provisions of section thirteen, article sixteen, chapter five be applied in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.

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 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.
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.
5-2A-8. Refunds to certain members upon discharge or resignation; deferred retirement.

(a) Any member who shall be discharged by order of the Superintendent or shall otherwise terminate employment with the division Department shall, 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 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 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) Except as otherwise provided in this section, Any a member of the division Department who has not yet entered retirement status on the basis of age and service and who has been or shall become physically or mentally permanently 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 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, 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 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 who has not yet entered retirement status on the basis of age and service and who shall become permanently 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 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 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, an amount equal to the amount of the base salary received by the member in the preceding twelve-month employment period.
The Superintendent of the division Department is authorized to 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 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 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, the Board shall be of opinion and find 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, the Board shall be 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, chapter fifteen of this code. 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) A member who has served fifteen or more years as an active member of the West Virginia State Police before filing an application for disability benefits under this article and who is found by the Board to be totally disabled as the direct and proximate result of cardiovascular disease not present at the time of the member's entry examination by the West Virginia State Police is presumed to have incurred the disability as a result of the member's duties as a member of the West Virginia State Police. This presumption is rebuttable by a preponderance of the evidence that the member's cardiovascular disease is not a direct and proximate result of the member's duties as a member of the West Virginia State Police.
(e) 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.
(f) 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 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 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 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 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 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 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.
§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 Department, has died or shall die 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 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.

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 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 entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive.
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 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.
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 normal schools, 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, the West Virginia Board of Regents, 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.
(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 Fund. The contributions shall be deducted from the salaries of the members as herein prescribed, and every member shall be deemed to have given consent to such 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 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.
(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 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 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 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-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 the event that all claims to benefits payable to, or on behalf of, a member expire before his or her member account has been fully exhausted. The expiration of such rights to benefits would be on the occasion of later of either the death of the retired member and any and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form of benefit. Without limitation, this would include the demise of beneficiaries of survivor annuities and beneficiaries of any lump sum distributions drawing benefits under a straight life annuity, or the death of a survivor annuitant drawing benefits under any optional form of benefit selected by the retired member.
(b) In the event that all claims to 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 no designated person or persons surviving the retired member following the expiration of such claims, the excess of the accumulated employee contributions over the accumulated net benefit, if any, shall be paid to his or her the retired member's estate. In no case may the plan retain any amount of the accumulated employee contributions remaining in the member's account, but it shall retain interest earned on the same accumulated employee contributions in the instance of a member's or beneficiary's post-retirement death. Provided, That the provisions of this section shall be retroactive 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 eligible for an annuity. No new entrant nor present member shall be 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 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 eligible for an annuity, but the same shall be the reduced actuarial equivalent of the annuity the member would have received if such 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 eligible for annuity for disability if he or she satisfies the conditions in either subdivision (a) or subdivision (b) and meets the conditions of subdivision (c) 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 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 service the disability is total and likely to be permanent, and that he or she should be retired in consequence thereof.
(f) Continuance of the disability of the retired teacher member shall be established by medical examination, as prescribed in the preceding paragraph, annually for five years after retirement, and thereafter at such times as 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 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.
(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 "average salary" shall mean 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 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 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 eligible for prior service credit and for prior service pensions as prescribed in this section.
§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 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 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 responsible for making such 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 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 becomes due and payable under the terms of the loan or after such 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 Section 72(p)(2) and Section 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 Section 72(p)(2) and Section 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 Section 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.
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.
§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 therein 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 article seven-c of this chapter.
§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 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 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 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 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 eligible to terminate his or her annuity account and receive all funds contributed to or accumulated in his or her annuity account.
(b) (1) 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 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 propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code rules 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 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.
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.
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.
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.
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.
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.
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.
If the merger provided for in this article occurs, should any future increase of existing benefits or the creation of new benefits under the Teachers 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, cause any additional unfunded actuarial accrued liability in the State Teachers Retirement Pension System (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded actuarial accrued liability of that pension system shall be fully amortized over no more than the ten consecutive fiscal years immediately following and beginning on the date of any legislative enactment which provides for the increase in benefits or which provides for new benefits becomes effective.
§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 deemed 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 deemed 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 Pan 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 deemed 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 deemed to have actual notice of the election and all matters pertinent thereto.
§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 thereof shall become members of the State Teachers Retirement System as provided herein.
(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 actuarial adjustment 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 must 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 thereof, 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, is allowed to vote on the question of the merger.
(c) The Board may retain the services of the professionals it deems 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 deemed final.
(a) The election is deemed 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 deemed 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 deemed 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 same.
(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."
Having been engrossed, the bill was then read a third time.
Questions having arisen as to members' being excused under the provisions of House Rule 49, the Speaker requested the members to identify themselves as follows:
1. The members who are currently members of the Teachers' Defined Contibution System, new in the 1990's, were requested to stand and they were:
Delegates Pethtel, Ennis, Varner, Perry, Palumbo, Louisos and Proudfoot.
The Speaker stated that those who are participants or have spouse participants in the system, clearly the effect of the bill is to have a pecuniary impact of effect on each member, perhaps positive or negative. He further stated that given the prior precedents on rulings of prior Speakers on similar issues and looking to guidance on voting on salary increases, those rulings have been that while the members standing have a pecuniary interest, there are thousands who are similarly situated and who will be similarly affected. He required the members to vote inasmuch as they are members of a broader class of persons to be affected by the passage of the bill.
2. Members who are or have spouses who are now or have ever been participants in the pre- 1990 system were requested to stand and they were:
Delegates Perry, Pethtel, Varner, Ennis, Talbott, Stephens, Poling, Stalnaker, Iaquinta, Browning, Spencer, Paxton, Proudfoot, H. White, Leggett, Romine, Duke, Rowan, Anderson, Evans, Sumner, Hall, Roberts and Schadler.
To those members the Speaker stated that the legislation before the House did not have a pecuniary effect or impact on them and while it may be appropriate that they request a ruling under House Rule 49, he refused to excuse them from voting since their benefits were not affected by the passage of the bill.
The Speaker then requested the Clerk to note those members not standing in either of the above-cited instances and having no apparent personal or pecuniary interest in the bill, and they were:
Delegate Amores, Argento, Armstead, Ashley, Azinger, Barker, Beach, Beane, Blair, Boggs, Border, Brown, Butcher, Campbell, Cann, Canterbury, Caputo, Carmichael, Craig, Crosier, DeLong, Doyle, Eldridge, Ellem, Evans, Ferrell, Frederick, Frich, Hamilton, Hartman, Hatfield, Houston, Howard, Hrutkay, Hunt, Kominar, Lane, Leach, Long, Longstreth, Mahan, Manchin, Marshall, Martin, Michael, Miley, Moore, Morgan, Overington, Perdue, Pino, Porter, Schoen, Sobonya, Staton, Stemple, Stevens, Susman, Swartzmiller, Tabb, Tansill, Rick Thompson, Ron Thompson, Trump, Tucker, Wakim, Walters, Webster, Wells. G. White, Williams, Wysong, Yost and Mr. Speaker, Mr. Kiss.
In reference to those individuals above-noted, the Speaker required each to vote on the passage of the bill inasmuch as there was no personal or pecuniary interest therein demonstrated.
The Speaker further stated that this ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non-reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 321), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Frederick, Lane and Long.
Absent And Not Voting: Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2984) passed.
An amendment to the title of the bill, recommendedby the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2984 -- "A Bill to repeal §12-8-1, §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6, §12-8- 7, §12-8-8, §12-8-9, §12-8-10, §12-8-11, §12-8-12, §12-8-13, §12-8-14 and §12-8-16 of the code of West Virginia, 1931, as amended; to amend and reenact §5-5-3 of said code; 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 and §5-10-44 of said code; to amend and reenact §5-10A-2 and 5-10A-3 of said code; to further amend said code by adding thereto a new section, designated §5-10A-11; to amend said code by adding thereto a new article containing §12-8A-1, §12-8A-2, §12-8A-3, §12-8A-4, §12-8A-5, §12-8A-6, §12-8A-7, §12- 8A-8, §12-8A-9, §12-8A-13, §12-8A-14, §12-8A-15 and §12-8A-16; to amend and reenact §7-14D- 5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code; 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; and to further amend said code by adding thereto three new sections, designated §15-2- 25b, §15-2-31a and §15-2-31b; 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 further amend said code by adding thereto three new sections, designated §15-2A- 11a, §15-2A-11b and §15-2A-21; to amend and reenact §18-7A-3, §18-7A-14, §18-7A-17, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code; 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; and to further amend said code by adding thereto two new sections, designated §18-7B-7a and §18-7B-20; and to amend said code by adding thereto a new article containing §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, all relating to state pensions and retirement generally; providing comprehensive changes to certain plans administered by the Consolidated Public Retirement Board; enacting the Governors Pension Reform Act of 2005; rights of members' unused, accrued leave in final average salary in the Public Employees Retirement System; amending and adding definitions in the Public Employees Retirement System; clarifying use of restricted qualified military service credit to one retirement system; 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; repealing the article on Pension Liability Redemption; creating a new article with respect to Pension Obligation Bonds; setting forth short title; declaring policy and making legislative findings; setting forth definitions; providing for issuance of bonds; method of bond issuance and sale of bonds; use of bond proceeds; creation of pension obligation bond fund and disbursements therefrom; providing for refunding bonds; setting forth state pledges and covenants; setting forth legal remedies of bond holders; setting forth nature of bonds as legal investments; providing exemption from taxation; providing subaccount for savings; supersedure and severability; 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; relating to amending definitions in the West Virginia State Police Retirement System; 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; 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; 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; 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; 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; and providing for nonseverability of the new article."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 322), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Fragale
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2984) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Miscellaneous Business

Delegate Trump announced that he was absent when the votes were taken on Roll No. 243 through 257, and had he been present he would have voted "yea" thereon; on Roll No. 258 through 260, he would have voted "nay" thereon; and on Roll No. 261 he would have voted "yea" thereon.
Delegate Leggett announced that he was absent when the votes were taken on Roll Nos. 317 through 320, and had he been present he would have voted "yea" thereon.
At 2:07 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:00 p.m., and reconvened at that time.
************

Evening Session

************
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred H. B. 2795, H. B. 2808, H. B. 3213, H. B. 3280, H. B. 3356 and H. B. 3361 on third reading Consent Calendar to the House Calendar; H. B. 2960, H. B. 3108, H. B. 3211 and J. B. 3219 on second reading Consent Calendar to the House Calendar; Com. Sub. for H. B. 2661, on first reading Consent Calendar to the House Calendar.

Special Calendar

Third Reading

Com. Sub. for H. B. 2986, Relating to the regulation of selling new or used vehicles, providing for the comprehensive regulation and licensing of persons who sell new or used vehicles; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 323), and there were--yeas 89, nays 9, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Evans, Hunt, Lane, Louisos, Porter, Schadler, Trump and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2986) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3040, Providing maximum time limits for one-way bus transportation for any new bus route created to transport students in the wake of the closure or consolidation of an existing school facility, on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 324), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3040) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 325), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3040) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3048,Relating to restructuring of the hunting and fishing license system; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 326), and there were--yeas 77, nays 21, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Border, Butcher, Canterbury, Carmichael, Eldridge, Evans, Hall, Hrutkay, Lane, Leggett, Louisos, Overington, Porter, Schadler, Stephens, Sumner, Susman and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3048) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 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.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 327), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Hrutkay.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub for H. B. 3049) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3053, Repealing the Downtown Redevelopment District Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 328), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3053) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 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.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 329), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Louisos, Martin, Poling and Talbott.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3089) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3107, Diabetes Care Plan Act established in the public schools; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 330), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3107) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 331), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3107) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3128, Relating to updating the meaning of "federal taxable income" and certain other terms used in West Virginia Corporation Net Income Tax Act; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 3135, Relating to updating the meaning of "federal adjusted gross income" and certain other terms used in West Virginia Personal Income Tax Act; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
Com. Sub. for H. B. 3138, Relating to requiring health insurance plans to cover the cost of contraceptives; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
On motion of Delegate Amores the bill was amended on page four, Section two, line twenty- eight, by striking subdivision (5) in its entirety and inserting in lieu thereof, the following:
"(5) "Religious employer" is an entity whose sincerely held religious beliefs or sincerely held moral convictions are central to the employer's operating principles, and the entity is an organization listed under 26 U.S.C. 501 (c)(3), 26 U.S.C. 3121, or listed in the Official Catholic Directory published by P. J. Kennedy and Sons."
And,
On page eight, by striking Section 7 in its entirety and inserting in lieu thereof, the following:
"§33-16E-7. Religious employer exemption.
(a) Notwithstanding any other provision of this article, a religious employer may exclude or restrict from any health care insurance plan contract benefits for any prescription contraceptive drugs and devices that are contrary to the religious employer's religious tenets.
(b) Nothing in this article shall be construed to exclude coverage for prescription contraceptive supplies ordered by a health care provider with prescriptive authority for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception that is necessary to preserve the life or health of an enrollee.
(c) The health insurer for every religious employer that invokes the exemption provided under this section shall provide written notice to prospective enrollees prior to enrollment with the plan, listing the contraceptive health care services the employer refuses to cover for religious reasons. The health insurer shall make available for purchase at the prevailing group rate a rider that provides prescription contraceptive drugs and devices."
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 332), and there were--yeas 82, nays 16, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Azinger, Blair, Cann, Carmichael, Ellem, Hall, Howard, Iaquinta, Lane, Leggett, Miley, Overington, Sobonya, Stevens and Sumner.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3138) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 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.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 333), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3145) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3160, Authorizing the Consolidated Public Retirement Board to charge delinquency fees approximating lost interest or earnings; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 334), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3160) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 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.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 335), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Manchin.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3174) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3203, Authorizing the closure of certain existing retirement funds for municipal policemen and firemen and establishment of a defined contribution plan in lieu thereof; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 336), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3203) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3208, Adjusting the formula by which the Public Service Commission distributes wireless enhanced 911 fee revenues to the counties; on third reading, coming up in regular order was, at the request of Delegate Staton, and by unanimous consent, postponed until the completion of first reading.
H. B. 3225, Relating to the preparation and publication of year-end financial statements by county boards of education; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 337), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3225) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 338), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3225) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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 in regular order, with amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk on page one, following the enacting clause, by striking out the remainder of the bill 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 §22-3-11a, and to amend and reenact §22-3-32 of said Code, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-11a.
(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 not to be construed as being a decrease in, or in lieu of, the minimum severance tax or any of the severance taxes imposed by said article thirteen-a, including the reduced severance tax rate for coal mined by underground methods based on seam thickness in section three of article thirteen-a.
(b) Notwithstanding any other provisions of section eleven of this article to the contrary, under no circumstance shall the special reclamation tax be construed to be an increase in either the minimum severance tax imposed by said article or the severance taxes imposed by article thirteen-a of said chapter.
(c) 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 the 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 eleven and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.
(p) Tax crimes and penalties. -- Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of said chapter eleven 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 eleven and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.
§22-3-32. Special tax on coal production; mines and minerals operations fund.

(a) Imposition of tax. -- Upon every person in this state engaging in the privilege of severing, extracting, reducing to possession or producing coal for sale, profit or commercial use, there is hereby imposed an annual tax equal to two cents per ton of coal produced by such person for sale, profit or commercial use during such person's taxable year. The special tax imposed by this section is in addition to all other taxes levied by law. In no event may a ton of coal be taxed more than once under the provisions of this section.
(b) Payment and collection of tax. -- The tax imposed by this section shall be collected by the Tax Commissioner in the same manner, at the same time, and upon the same tonnage as the minimum severance tax imposed by article twelve-b, chapter eleven of this code is collected: Provided, That under no circumstance shall this tax be construed to be an increase in either the minimum severance tax imposed by said article twelve-b or the severance tax taxes imposed by article thirteen thirteen-a of said chapter eleven: Provided, however, That it is the intent of the Legislature to clarify that from the date of its enactment, the special tax on coal production is not to be construed as being a decrease in, or in lieu of, the minimum severance tax or any of the severance taxes imposed by said article thirteen-a, including the reduced severance tax rate for coal mined by underground methods based on seam thickness in section three of article thirteen-a. Every person liable for payment of this special tax shall pay the amount due without notice or demand for payment. The Tax Commissioner shall provide to the Director a quarterly listing of all persons known to be delinquent in payment of the special tax. The Director may take such delinquencies into account in making determinations on the issuance, renewal or revision of any permit.
(c) Mining and Reclamation Operations Fund. -- The special fund previously created in the State Treasury known as the "Mines and Minerals Operations Fund" is renamed the "Mining and Reclamation Operations Fund". The Tax Commissioner shall, at least quarterly, deposit into the fund the net amount of tax collected under this section, including any additions to tax, penalties and interest collected with respect thereto. The Treasurer shall deposit all moneys deposited in or credited to this fund in an interest-bearing account, with the amount of interest earned being credited to this fund as it is earned. The moneys in this special fund shall be expended solely for the purposes of carrying out those statutory duties relating to the enforcement of environmental regulatory programs for the coal industry as imposed by this chapter and the federal Surface Mining Control and Reclamation Act of 1977 and any amendments thereto. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriations by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter five-a of this code.
(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 the code applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.
(e) Crimes and penalties. -- Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of said chapter eleven applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.
(f) Effective date. -- The special tax imposed by this section applies to all coal produced in this state after the thirtieth day of September, one thousand nine hundred ninety-one.
At the request of Delegate Staton and by unanimous consent, the bill was then postponed until the completion of first reading.

H. B. 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, with the right to amend, was reported by the Clerk.
Delegate Overington moved to amend the bill on page 4, section 8, line 44, by striking the words "three hundred" and inserting in lieu thereof the following: "one thousand".
On page 4, section 8, line 54, by striking the words "three hundred" and inserting in lieu thereof the following: "one thousand".
On page four, section 8, line 55, after the word "university", by striking the remainder of the subdivision and inserting in lieu thereof the following:
": Provided further, That the prohibition against locating any such proposed business in a place or building within one thousand feet of any church shall not apply to any proposed business, seventy- five percent of which consists of sales of food and non alcoholic beverages and which is not licenced to conduct limited video lottery, whenever the governing body of any such church has notified the Commissioner, in writing, that it has no objection to the location of any such proposed business in a place or building within one thousand feet of the church;"
On page 6, section 8, line 101, after the word "university", by striking the remainder of the subdivision and inserting in lieu thereof the following:
": Provided further, That the prohibition against locating any such proposed business in a place or building within one thousand feet of any church shall not apply to any proposed business, seventy-five percent of which consists of sales of food and non alcoholic beverages and which is not licenced to conduct limited video lottery, whenever the governing body of any such church has notified the Commissioner, in writing, that it has no objection to the location of any such proposed business in a place or building within one thousand feet of the church;"
Delegate Spencer arose to a point of order as to the germaneness of the amendment, which point of order the Speaker ruled was well taken.
At the request of Delegate Overington and by unanimous consent, further consideration of the bill was postponed until the completion of first reading.
H. B. 3357, Streamlined sales and use tax administration; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 339), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane, Louisos, Overington, Stevens,Deb, Sumner, Wakim and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3357) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3358, Relating to severance tax imposed on natural gas produced from wells placed in service on or after July 1, 2005; on third reading, coming up in regular order, was read a third time.
Delegates Armstead and Trump requested to be excused from voting on the passage of H. B. 3358 under the provisions of House Rule 49.
The Speaker refused to excuse the Gentlemen from voting, stating that they was a member of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
This ruling will stand as the judgment of the Chair and of the House, pursuant to the inherent right to make, interpret and enforce our rules of procedure as established by our sovereign, non- reviewable Constitutional authority, and shall be binding in all other potential venues.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 340), and there were--yeas 91, nays 6, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Caputo, Longstreth, Louisos, Manchin, Porter and Romine.
Absent And Not Voting: Beach, Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3358) passed.
Delegate Staton announced that he was absent when the vote was taken on Roll No. 340, and had he been present he would have voted "yea" thereon.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 341), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Moore.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3358) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2224, Creating a health care providers lien; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegates Palumbo and Amores, the bill was amended on page seven, section thirty-seven, line one hundred-two, following the word "lien" by changing the period to a colon, and adding the following proviso: "Provided, That if an insurance company, corporation or individual pays its portion of the settlement or judgment to an attorney representing an injured party, then the insurance company, corporation or individual shall not be liable to the licensed physician or therapist for the lien."
At the request of Delegate Hunt, and by unanimous consent, further consideration of the bill was postponed until the completion of first reading.
H. B. 2795, Relating to the consolidation of administrative, information, technological, financial and operating systems and functions of West Virginia University Institute of Technology with and into such systems and functions of West Virginia University; on third reading, coming up in regular order, with amendment pending, was reported by the Clerk.
On recommendation of the Committee on Finance, the bill was amended on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §18B-2-9 of the Code of West Virginia, 1931, as amended, be repealed; that said Code be amended by adding thereto a new section, designated §18B-1-12; that §18B-1B-6 of said Code be amended and reenacted; and that §18B-2A-1 of said Code be amended and reenacted, all to read as follows:
ARTICLE 1. GOVERNANCE.
§18B-1-12. West Virginia University Institute of Technology.
(a) West Virginia University Institute of Technology continues as a regional campus of West Virginia University. The West Virginia University Board of Governors has full authority and discretion to coordinate, consolidate, integrate, merge or otherwise alter or combine the various administrative, informational, technological, financial and operating systems and functions of West Virginia University Institute of Technology in, into or with any system or function of West Virginia University.
(b) Auxiliary enterprises of West Virginia University Institute of Technology are incorporated into the West Virginia University auxiliary enterprise system. The West Virginia University board of governors shall require that, to the extent practicable, auxiliary operations at West Virginia University Institute of Technology are operated on a self-sufficient basis when establishing budgets and evaluating the operations of auxiliary enterprises.
(c) For the purposes of meeting the requirements of section one, article seven of this chapter, West Virginia University Institute of Technology, West Virginia University at Parkersburg, and the Potomac Branch of West Virginia University are considered separate institutions of higher education.
(d) Any new graduate program offered by West Virginia University at West Virginia University Institute of Technology requires the prior approval of the Commission, and may not duplicate an existing graduate program offered by Marshall University Graduate College.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of presidents of the state public institutions of higher education shall be are made as follows:
(1) Subject to the approval of the Commission, the governing board of the institution appoints a president for Bluefield State College, Concord College University, Fairmont State College University, Glenville State College, Marshall University, Shepherd College University, West Liberty State College, West Virginia School of Osteopathic Medicine, West Virginia State College University and West Virginia University.
(2) Subject to the approval of the Council and to the provisions of article three-c of this chapter, the governing board of West Virginia University appoints the president of the regional campus known as West Virginia University at Parkersburg. When selecting candidates for consideration to fill the office of president, the governing board shall use the search and screening process provided for in section one, article six of this chapter.
Subject to the approval of the Commission The governing board of West Virginia University appoints the president of the regional campus known as West Virginia University Institute of Technology. The president of West Virginia University Institute of Technology each regional campus serves at the will and pleasure of the appointing governing board, and for management and executive purposes, reports and is accountable to the president of West Virginia University, or otherwise as determined by the board of governors.
(3) Subject to the approval of the Council, the governing board of the community and technical college appoints a president for the Community and Technical College of Shepherd, Eastern West Virginia Community and Technical College, New River Community and Technical College, Southern West Virginia Community and Technical College and West Virginia Northern Community and Technical College.
(4) Subject to the approval of the Council, the governing board of the sponsoring institution appoints a president for each administratively-linked community and technical colleges college which shares a physical campus location with the sponsoring institution, including Fairmont State Community and Technical College, Marshall Community and Technical College, the Community and Technical College at West Virginia University Institute of Technology and West Virginia State Community and Technical College.
(5) Subject to the approval of the Council, the governing board of the community and technical college appoints a president for each administratively-linked community and technical college which does not share a physical campus location with the sponsoring institution, including New River Community and Technical College and the Community and Technical College of Shepherd.
Subject to the approval of the Council, the governing board of the sponsoring institution appoints a president for each of these two community and technical colleges until the institution gains independent accreditation.
(b) Other appointments. -- Effective the first day of July, two thousand five, the institutional shall appoint The president of West Virginia University appoints a provost to be the administrative head of the Potomac Campus of West Virginia University.
(c) Evaluation of presidents. -- The appointing governing board shall conduct written performance evaluations of each institution's president, including the presidents of administratively- linked community and technical colleges. Evaluations shall be are done in every fourth year of employment as president, recognizing unique characteristics of the institution and utilizing institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate governing board and persons knowledgeable in higher education matters who are not otherwise employed by a governing board. A part of the evaluation shall be a determination of the success of the institution in meeting the requirements of its institutional compact.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.

§18B-2A-1. Composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment.

(a) A board of governors is continued at each of the following institutions: Bluefield State College, the Community and Technical College of Shepherd, Concord College University, Eastern West Virginia Community and Technical College, Fairmont State College University, Glenville State College, Marshall University, New River Community and Technical College, Shepherd College University, Southern West Virginia Community and Technical College, West Liberty State College, West Virginia Northern Community and Technical College, the West Virginia School of Osteopathic Medicine, West Virginia State College University and West Virginia University.
(b) For the Community and Technical College of Shepherd and New River Community and Technical College governing boards: the institutional board of advisors remains in place until the institution achieves independent accreditation as provided in section eight, article three-c of this chapter.
(1) As long as the institutional board of advisors remains in place, the chairperson of the board of advisors serves as an ex officio, voting member of the board of governors of the sponsoring institution;
(2) When the community and technical college achieves independent accreditation, the board of advisors is abolished and a board of governors is established with members appointed pursuant to this section;
(3) When a board of governors is established for the community and technical college:
(A) The chairperson
(1) The chair of the governing board of the sponsoring institution serves as an ex officio, nonvoting member of the governing board of the community and technical college board of governors; and
(B) The chairperson
(2) The chair of the governing board of the community and technical college serves as an ex officio, nonvoting member of the governing board of the sponsoring institution.
(4) In making the initial appointments to these boards of governors, the Governor shall appoint those persons who are lay members of the institutional boards of advisors, except in the case of death, resignation or failure to be confirmed by the Senate.
(c) The institutional board of governors for Marshall University consists of sixteen persons and the institutional board of governors for West Virginia University consists of seventeen eighteen persons. Each other board of governors consists of twelve persons.
(d) Each Board of Governors includes the following members:
(1) A full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution;
(2) A member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution;
(3) A member from the institutional classified employees duly elected by the classified employees of the respective institution; and
(4) For the institutional board of governors at Marshall University, twelve lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section and, additionally, the chairperson chair of the institutional board of advisors of Marshall Community and Technical College serving as an ex officio, voting member.
(5) For the institutional board of governors at West Virginia University, twelve lay members appointed by the Governor by and with the advice and consent of the Senate pursuant to this section and, additionally, serving as ex officio, voting members, the chairperson chairs of the institutional board boards of advisors of the Community and Technical College at West Virginia University Institute of Technology, and West Virginia University at Parkersburg, and West Virginia University Institute of Technology.
(6) For each institutional board of governors of an institution that does not have an administratively-linked community and technical college under its jurisdiction, nine lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section.
(7) For each institutional board of governors which has an administratively-linked community and technical college under its jurisdiction:
(A) Eight lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section and, additionally, the chairperson chair of the institutional board of advisors of the administratively-linked community and technical college; and
(B) Of the eight lay members appointed by the Governor, one shall be is the superintendent of a county board of education from the area served by the institution.
(e) Of the eight or nine members appointed by the Governor, no more than five may be of the same political party. Of the twelve members appointed by the Governor to the governing boards of Marshall University and West Virginia University, no more than seven may be of the same political party. Of the eight or nine members appointed by the Governor, at least six shall be are residents of the state. Of the twelve members appointed by the Governor to the governing boards of Marshall University and West Virginia University, at least eight shall be are residents of the state.
(f) The student member serves for a term of one year. Each term begins on the first day of July.
(g) The faculty member serves for a term of two years. Each term begins on the first day of July. Faculty members are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(h) The member representing classified employees serves for a term of two years. Each term begins on the first day of July. Members representing classified employees are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
(i) The appointed lay citizen members serve terms of four years each and are eligible to succeed themselves for no more than one additional term.
(j) A vacancy in an unexpired term of a member shall be is filled for the unexpired term within thirty days of the occurrence of the vacancy in the same manner as the original appointment or election. Except in the case of a vacancy, all elections shall be are held and all appointments shall be are made no later than the thirtieth day of June preceding the commencement of the term. Each board of governors shall elect elects one of its appointed lay members to be chairperson chair in June of each year. A member may not serve as chairperson chair for more than two consecutive years.
(k) The appointed members of the institutional boards of governors serve staggered terms of four years.
(l) A person is ineligible for appointment to membership on a board of governors of a state institution of higher education under the following conditions:
(1) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of any other board of governors, a member of an institutional board of advisors of any public institution of higher education, an employee of any institution of higher education, an officer or member of any political party executive committee, the holder of any other public office or public employment under the government of this state or any of its political subdivisions or a member of the Council or Commission. This subsection does not prevent the representative from the faculty, classified employees, students or chairpersons chairs of the boards of advisors or the superintendent of a county board of education from being members of the governing boards.
(2) For a community and technical college, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; a member of an institutional board of advisors of any public institution of higher education; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office, other than an elected county office, or public employment, other than employment by the county board of education, under the government of this state or any of its political subdivisions; or a member of the Council or Commission. This subsection does not prevent the representative from the faculty, classified employees, students or chairpersons chairs of the boards of advisors from being members of the governing boards.
(m) Before exercising any authority or performing any duties as a member of a governing board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by section five, article IV of the Constitution of West Virginia and the certificate thereof shall be filed with the Secretary of State.
(n) A member of a governing board appointed by the Governor may not be removed from office by the Governor except for official misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed by law for the removal of the state elective officers by the Governor.
(o) The president of the institution shall make available resources of the institution for conducting the business of its board of governors. The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.".
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 342), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2795) passed.
On recommendation of the Committee on Finance, title of the bill was amended to read as follows:
H. B. 2795 -- "A Bill to repeal §18B-2-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18B-1-12; to amend and reenact §18B-1B-6 of said code; and to amend and reenact §18B-2A-1 of said code, all relating generally to the relationships between West Virginia University Institute of Technology, West Virginia University and the West Virginia University Board of Governors; providing for coordination, consolidation and incorporation of certain systems, functions, operations and enterprises between the institutions; establishing reporting and accountability requirements for the President of West Virginia University Institute of Technology; and expanding the membership of the West Virginia University Board of Governors."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 343), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2795) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 2808, Relating to adding a magistrate to those serving in Raleigh County; having been reported from committee in earlier proceedings, on third reading, with an amendment pending, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, second reference of the bill (H. B. 2808) to the Committee on Finance was dispensed with.
On motion of Delegates Trump, Beane, Azinger, Border, Ellem, Anderson, Tabb, Duke, Blair and Roberts the bill was amended on page four, section two, line fifty-two, by striking subsection "(e)" in its entirety, and inserting in lieu thereof a new subsection, designated subsection "(e)" to read as follows:
"(e) Notwithstanding the other provisions of this section, the allowable number of magistrates serving the counties of Raleigh, Berkeley, Morgan and Wood on the first day of March, two thousand five, shall be increased by one in each county, effective the first day of July, two thousand five. The initial appointment to the position shall be made in accordance with the provisions of section six of this article."
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 344), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 345), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2808) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3213, Creating the offenses of malicious assault, unlawful assault, battery and recidivism of battery, assault on a driver, conductor, captain or other person in charge of any vehicle used for public; having been reported from committee in earlier proceedings, on third reading, was reported by the Clerk.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 346), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Frich.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 347), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Border, Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3213) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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; having been reported from committee in earlier proceedings, on third reading, was reported by the Clerk.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 348), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 349), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3280) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3356, Powers and duties of solid waste management board; ; having been reported from committee in earlier proceedings, on third reading, with an amendment pending, was reported by the Clerk.
On motion of Delegate Duke the bill was amended on page two, section twenty-six, line four, following the words "granted to" by striking out the word "any" and inserting in lieu thereof the word "only".
On page two, section twenty-six, line four, following the word "authority" by inserting the words "that operate solid waste facilities".
On page three, section twenty-six, line seven, following the words "granted to" by striking out the remainder of the section and inserting in lieu thereof the words "only county or regional solid waste authorities that operates a solid waste facility."
On page four, section three, line eighteen, by striking out the words "serve at the will and pleasure of the appointing agencies and".
On page six, section four, line twelve, by striking out the words "serve at the will and pleasure of the appointing agencies and".
On page eight, section nine-a, line eight, following the word "county" by inserting the words "that operates a commercial solid waste facility".
And,
On page ten, section nine-a, line thirty-two, following the word "county" by inserting the words "solid waste authority operating a commercial solid waste facility".
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 350), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3356) passed.
On motion of Delegate Duke the title of bill was amended to read as follows:
H. B. 3356 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §22C-3-26; to amend and reenact §22C-4-3 and §22C-4-4 of said code; and to amend said code by adding thereto a new section, designated §22C-4-9a, all relating generally to the powers and duties of the solid waste management board; providing for performance reviews of authorities and performance measures; requiring proposal of legislative rules for implementation of review process and system; circumstances under which solid waste management board is authorized to intervene in and supersede the exercise of authority related to certain county or regional solid waste authorities that operate a solid waste facility; providing for establishment of a uniform chart of accounts delineating common revenue and expense account naming conventions to be adopted by all county and regional solid waste authorities; and requiring audits of authorities."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3361, Relating to the West Virginia Sunset Law; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 351), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Trump.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3361) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 352), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3361) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading

S. B. 604, Establishing method for projecting increase in net enrollment for each school district; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the bill on page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"That §18-9A-15 and §18-9A-22 the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-15. Allowance for increased enrollment.
(a) To provide for the support of increased net enrollments in the counties in a school year over the net enrollments used in the computation of total state aid for that year, there shall be appropriated for that purpose from the general revenue fund an amount equal to the average total state aid per net pupil multiplied by the total of all of the increases in the net enrollments of the counties made by comparing the most recent reports of net enrollment for the second school month to the immediately previous year's reports for the same school month.
(b) Any county wherein the net enrollment in the most recent reports of net enrollment for the second school month compared to the immediately previous year's reports for the same school month has increased by fifty or more students may add to their request schedule filed with the state board pursuant to section nineteen of this article a schedule of payments to the county from the appropriation made pursuant to subsection (a) of this section. The total amount of the payments requested in the added request schedule may not exceed sixty-five percent of the portion of the appropriation which is attributable to the county's increased enrollment payable over the first six months of the fiscal year.
(c) Upon determination of the several increases in the respective counties' net enrollments, as of the close of the second school month, each county showing such increase shall be allocated an amount equal to that county's average per net pupil total state aid multiplied by the increase in that county's net enrollment determined as provided heretofore, less any amounts paid and payable to the county pursuant to subsection (b) of this section. If the amounts paid and payable pursuant to subsection (b) of this section exceed the allocation due to the county under this subsection, the county's schedule of payments of total state aid for the remainder of the fiscal year shall be reduced by the amount of the overage and this amount shall be available for allocation pursuant to this section. Such The allocations shall be distributed not later than the thirty-first day of December of each year to the counties having increases in net enrollment as heretofore provided. If the amount appropriated for this purpose shall not be sufficient to provide payment in full for the total of these several allocations, each county allocation shall be reduced to an amount which is proportionate to the appropriation compared to the total of the several allocations, and the allocations as thus adjusted shall be distributed to the counties as provided in this section: Provided, That the governor shall request a supplemental appropriation at the next legislative session for the reduced amount.
(d) No provision of this section shall be construed to in any way affect the allocation of moneys for educational purposes to a county under other provisions of law.
(e) Except for those students who are enrolled in special education programs, students who have not attained the age of five prior to the first day of September shall may not be included for any purpose of this section.
Nothing in this section shall be construed to require any specific level of funding by the Legislature.
§18-9A-22. Allowance to improve economies of scale of low student enrollment counties.
(a) The Legislature finds that counties whose net enrollment falls below a certain level may not have the economies of scale to support the proper operation of the school system and the education of their students. The Legislature further finds that to make a determination of whether additional assistance is needed by such a county, and if it is, then in what form and amount, it is necessary to examine the local circumstances and ensure the efficient use of available resources. Therefore, the purpose of this section is to provide a process for examining the economies of scale of counties with low student net enrollment and providing additional assistance to them if necessary including, but not limited to, the grant of funds.
(b) Upon the written request of a county with a student net enrollment of less than one thousand four hundred students, the state superintendent shall examine whether all of the resources available to the county are being efficiently utilized and whether additional assistance is needed within the county to improve its economies of scale. The state superintendent may take any of the following actions:
(1) If the state superintendent finds that all of the resources of the county are not being used efficiently, the state superintendent shall recommend areas of improvement to the county and, if requested by the county, may provide technical assistance to make the improvements;
(2) If the state superintendent finds that additional assistance is needed to improve the economies of scale of the county, the state superintendent shall determine whether the economies of scale may be increased with additional resources through the regional education service agency, through cooperative agreements with adjoining counties, and by technical assistance and other programs available to the state superintendent. The state superintendent shall take the actions that are within his or her authority to increase the economies of scale of the county through these means; and
(3) If the state superintendent finds that additional assistance is needed to improve the economies of scale of the county after the actions provided in subdivisions (1) and (2) of this subsection are exhausted, the state superintendent may, subject to appropriations made by the Legislature therefore, make a grant of funds to the county to assist in improving its economies of scale. The grant of funds may include any restrictions, conditions and purposes that the state superintendent determines necessary to improve the economies of scale of the county."
And,
By amending the enacting section to read as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §18-2E-5d; that §18-5-10 of said code be amended and reenacted; and that §18- 9D-2 and §18-9D-16 of said code be amended and reenacted, all to read as follows" and a colon.
The bill was then ordered to third reading.
Com. Sub. for H. B. 2801, Relating to removing the delay in school aid formula funding for increased student enrollment; on second reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.
H. B. 2960, Permitting licensed restaurants to sell sealed bottles of wine produced by a member of the West Virginia Farm Wineries Association for consumption off the premises; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page six, section three, line sixteen, following the word "a", by striking out the words "member of the West Virginia Farm Wineries Association", and inserting in lieu thereof the words "West Virginia Farm winery."
The bill was then ordered to engrossment and third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 353), and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Sobonya and Stevens,Deb.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
 Having been engrossed, the bill was then read a third time and put upon its passage. The question being on the passage of the bill, the yeas and nays were taken (Roll No. 354), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Leggett, Porter and Sobonya.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2960) passed.
 An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2960 -- "A Bill to amend and reenact §60-8-3 of the Code of West Virginia, 1931, as amended, relating to permitting licensed restaurants to sell sealed bottles of wine produced by a West Virginia winery for consumption off the premises."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 355), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2960) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
 H. B. 3108, Increasing the focus of regional educational service agencies on school improvement; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 356), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Stevens,Deb.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
 Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 357), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3108) passed.
 Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 358), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3108) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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 second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 359), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 360), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3211) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3219, Amending the provisions of the West Virginia Victims of Crime Compensation Act to make it clear that persons holding authority with respect to the victim by power of attorney or other authority have the authority to assert claims; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 361), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Stevens,Deb.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 362), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3219) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
First Reading

H. B. 3215, Creation of the Funeral Planning Agent Designation Act; on first reading, coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 363), and there were--yeas 71, nays 27, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Frich, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Romine, Schadler, Schoen, Sobonya, Stevens,Deb, Sumner, Tansill, Trump, Wakim and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having not voted in the affirmative, the constitutional rule was not dispensed with.
H. B. 3216, Describing the scope and limitations of legislative immunity; on first reading, coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 364), and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Armstead, Frich and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 365), and there were--yeas 84, nays 12, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Canterbury, Carmichael, Duke, Frich, Hamilton, Leggett, Rowan, Sobonya, Stevens and Sumner.
Absent And Not Voting: DeLong, Ferrell, Fragale and Thompson, Ron.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3216) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 366), and there were--yeas 90, nays 6, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Duke, Frich, Sobonya and Sumner.
Absent And Not Voting: Ferrell, Fragale, Marshall and Thompson, Ron.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3216) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3362, Creating the "Hybrid Canine Control Act"; on first reading, coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 367), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane and Overington.
Absent And Not Voting: Ferrell, Fragale and Thompson, Ron.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 368), and there were--yeas 93, nays 4, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane, Louisos, Overington and Stemple.
Absent And Not Voting: Ennis, Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3362) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2661, Prohibiting the sale of candy or fruit-flavored cigarettes in this state; on first reading. coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 369), and there were--yeas 72, nays 27, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Argento, Blair, Border, Browning, Butcher, Duke, Eldridge, Evans, Howard, Lane, Leggett, Louisos, Perry, Pethtel, Rowan, Schadler, Sobonya, Spencer, Stalnaker, Stemple, Stevens, Sumner, Swartzmiller, Wakim, Walters, White, Gil and White, H..
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted not in the affirmative, the constitutional rule was not dispensed with.
Third Reading

Com. Sub. for H. B. 3208, Adjusting the formula by which the Public Service Commission distributes wireless enhanced 911 fee revenues to the counties; on third reading, with the right to amend, having been postponed in earlier proceedings until this time, was again reported by the Clerk.
On motion of Delegate Michael, the bill was amended on page three, section six-b, line thirty, following the word "year" by inserting the following:
"Provided, however, That the fee may never be less than the amount set in subsection (b) of this section"
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 370), and there were--yeas 59, nays 37, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Argento, Armstead, Azinger, Barker, Border, Brown, Butcher, Canterbury, Caputo, Carmichael, Eldridge, Ellem, Frich, Hatfield, Howard, Hrutkay, Hunt, Lane, Leggett, Longstreth, Louisos, Manchin, Morgan, Overington, Palumbo, Porter, Roberts, Sobonya, Spencer, Stephens, Sumner, Tansill, Wakim, Walters, Webster and Wells.
Absent And Not Voting: Cann, Ferrell, Fragale and Romine
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3208) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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, with the right to amend, having been postponed in earlier proceedings until this time, was again reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill 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 §22-3-11a, and to amend and reenact §22-3-32 of said Code, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-11a.
(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 not to be construed as being a decrease in, or in lieu of, the minimum severance tax or any of the severance taxes imposed by said article thirteen-a, including the reduced severance tax rate for coal mined by underground methods based on seam thickness in section three of article thirteen-a.
(b) Notwithstanding any other provisions of section eleven of this article to the contrary, under no circumstance shall the special reclamation tax be construed to be an increase in either the minimum severance tax imposed by said article or the severance taxes imposed by article thirteen-a of said chapter.
(c) 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 the 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 eleven and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.
(p) Tax crimes and penalties. -- Each and every provision of the 'West Virginia Tax Crimes and Penalties Act' set forth in article nine of said chapter eleven 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 eleven and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.
§22-3-32. Special tax on coal production; mines and minerals operations fund.
(a) Imposition of tax. -- Upon every person in this state engaging in the privilege of severing, extracting, reducing to possession or producing coal for sale, profit or commercial use, there is hereby imposed an annual tax equal to two cents per ton of coal produced by such person for sale, profit or commercial use during such person's taxable year. The special tax imposed by this section is in addition to all other taxes levied by law. In no event may a ton of coal be taxed more than once under the provisions of this section.
(b) Payment and collection of tax. -- The tax imposed by this section shall be collected by the Tax Commissioner in the same manner, at the same time, and upon the same tonnage as the minimum severance tax imposed by article twelve-b, chapter eleven of this code is collected: Provided, That under no circumstance shall this tax be construed to be an increase in either the minimum severance tax imposed by said article twelve-b or the severance tax taxes imposed by article thirteen thirteen-a of said chapter eleven: Provided, however, That it is the intent of the Legislature to clarify that from the date of its enactment, the special tax on coal production is not to be construed as being a decrease in, or in lieu of, the minimum severance tax or any of the severance taxes imposed by said article thirteen-a, including the reduced severance tax rate for coal mined by underground methods based on seam thickness in section three of article thirteen-a. Every person liable for payment of this special tax shall pay the amount due without notice or demand for payment. The Tax Commissioner shall provide to the Director a quarterly listing of all persons known to be delinquent in payment of the special tax. The Director may take such delinquencies into account in making determinations on the issuance, renewal or revision of any permit.
(c) Mining and Reclamation Operations Fund. -- The special fund previously created in the State Treasury known as the 'Mines and Minerals Operations Fund' is renamed the 'Mining and Reclamation Operations Fund'. The Tax Commissioner shall, at least quarterly, deposit into the fund the net amount of tax collected under this section, including any additions to tax, penalties and interest collected with respect thereto. The Treasurer shall deposit all moneys deposited in or credited to this fund in an interest-bearing account, with the amount of interest earned being credited to this fund as it is earned. The moneys in this special fund shall be expended solely for the purposes of carrying out those statutory duties relating to the enforcement of environmental regulatory programs for the coal industry as imposed by this chapter and the federal Surface Mining Control and Reclamation Act of 1977 and any amendments thereto. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriations by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter five-a of this code.
(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 the code applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.
(e) Crimes and penalties. -- Each and every provision of the 'West Virginia Tax Crimes and Penalties Act' set forth in article nine of said chapter eleven applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.
(f) Effective date. -- The special tax imposed by this section applies to all coal produced in this state after the thirtieth day of September, one thousand nine hundred ninety-one."
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 371), and there were--yeas 85, nays 12, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Blair, Carmichael, Frich, Lane, Martin, Overington, Sobonya, Stevens,Deb, Sumner, Wakim and Walters.
Absent And Not Voting: Ferrell, Fragale and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3236) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
H. B. 3236 -- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section designated §22-3-11a; and to amend and reenact §22-3-32 of said Code, all relating to the special reclamation tax and special tax on coal production; providing that both of these taxes apply to production of thin seam coal; 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."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3258, Permitting the sale of nonintoxicating beer within a certain distance from a church that consents to the sale; on third reading, with the right to amend, having been postponed until this time, was again reported by the Clerk.
Delegate Overington moved to amend the bill on page four, section eight, line forty-four, by striking out the words "three hundred" and inserting in lieu thereof the words "one thousand".
On page four, section eight, line fifty-four, by striking out the words "three hundred" and inserting in lieu thereof the words "one thousand".
On page four, section eight, line fifty-five, following the word "university", by striking out the remainder of the subdivision and inserting in lieu thereof a colon and the following:
"Provided further, That the prohibition against locating any such proposed business in a place or building within one thousand feet of any church shall not apply to any proposed business, seventy- five percent of which consists of sales of food and non alcoholic beverages and which is not licenced to conduct limited video lottery, whenever the governing body of any such church has notified the Commissioner, in writing, that it has no objection to the location of any such proposed business in a place or building within one thousand feet of the church" followed by a semicolon.
On page six, section eight, line one hundred one, after the word "university", by striking out the remainder of the subdivision and inserting in lieu thereof a colon and the following:
"Provided further, That the prohibition against locating any such proposed business in a place or building within one thousand feet of any church shall not apply to any proposed business, seventy- five percent of which consists of sales of food and non alcoholic beverages and which is not licenced to conduct limited video lottery, whenever the governing body of any such church has notified the Commissioner, in writing, that it has no objection to the location of any such proposed business in a place or building within one thousand feet of the church" followed by a semicolon.
On the adoption of the amendment, Delegate Overington demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 372), and there were--yeas 31, nays 67, absent and not voting 2, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Border, Carmichael, Eldridge, Ellem, Evans, Frederick, Frich, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts, Romine, Rowan, Schadler, Schoen, Sobonya, Staton, Stephens, Stevens, Susman, Tabb and Walters.
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
There being no further amendments, and having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 373), and there were--yeas 69, nays 28, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Border, Carmichael, Duke, Ennis, Frich, Hall, Hamilton, Howard, Iaquinta, Lane, Leggett, Louisos, Miley, Overington, Poling, Porter, Roberts, Romine, Rowan, Schoen, Sobonya, Stephens, Stevens, Sumner, Susman, Tabb and Walters.
Absent And Not Voting: Ferrell, Fragale and Spencer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 3258) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2224, Creating a health care providers lien; on third reading, having been postponed until this time, was, at the request of Delegate Staton, and by unanimous consent, laid over one day.
The House of Delegates then proceeded to further consideration of bills on the Consent Calendar and, unanimous consent having been obtained, each bill was considered separately.
Consent Calendar

Third Reading

At the request of Delegate Overington, and by unanimous consent, H. B. 3153 was removed from the Consent Calendar and placed upon the House Calendar.
H. B. 3094, Relating to child support and enforcement; on third reading, coming up in regular order, having been read a second time in earlier proceedings and advanced to third reading with an amendment pending, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §48-14-419 of the code of West Virginia, 1931, as amended be repealed; that §48-16-308 of said code be repealed; that §48-18-109 and §48-18-127 of said code be repealed; that §48-11- 105 of said code be amended and reenacted; that §48-13-401, §48-13-403, §48-13-502 and §48-13- 601 of said code be amended and reenacted; that §48-17-101 of said code be amended and reenacted; that §48-18-103, §48-18-108, §48-18-112, §48-18-113, §48-18-117, §48-18-118, §48-18-119, §48- 18-121 of said code be amended and reenacted; and that §48-19-102 of said code be amended and reenacted, all to read as follows:
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-105. Modification of child support order.
(a) The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child or by the bureau for child support enforcement of the Department of Health and Human Resources of this state.
(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change: Provided, That after the first day of July, two thousand five, if application of the guideline would result in a new order that is more than fifteen percent different or seventy-five dollars different, whichever is less, then the circumstances are considered a substantial change.
(c) An order that modifies the amount of child support to be paid shall conform to the support guidelines set forth in article 13-101, et seq., of this chapter unless the court disregards the guidelines or adjusts the award as provided for in section 13-702.
(d) The Supreme Court of Appeals shall make available to the courts a standard form for a petition for modification of an order for support, which form will allege that the existing order should be altered or revised because of a loss or change of employment or other substantial change affecting income or that the amount of support required to be paid is not within fifteen percent of the child support guidelines. The clerk of the circuit court and the secretary-clerk of the family court shall make the forms available to persons desiring to represent themselves in filing a motion for modification of the support award.
ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
PART 4. SUPPORT IN BASIC SHARED PARENTING CASES.

§48-13-401. Basic child support obligation in basic shared parenting.
For basic shared parenting cases, the total child support obligation consists of the basic child support obligation plus the child's share of any unreimbursed health care expenses, work-related child care expenses related to work and education and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court.
§48-13-403. Worksheet for calculating basic child support obligation in basic shared parenting cases.

Child support for basic shared parenting cases shall be calculated using the following worksheet:
Worksheet A: BASIC SHARED PARENTING

IN THE FAMILY COURT OF __________ COUNTY, WEST VIRGINIA
CASE NO.________
Mother: _____________________ SS No.: ________________ Primary Custodial parent? ? Yes ? No
Father: ______________________ SS No.: ________________ Primary Custodial parent? ? Yes ? No
         
Children SSN Date of Birth Children SSN Date of Birth
           
           
           
PART I. CHILD SUPPORT ORDER Mother Father Combin ed
1. MONTHLY GROSS INCOME (Exclusive of overtime compensation) $ $  
a. Minus preexisting child support payment - -  
b. Minus maintenance paid - -  
c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code §48-1-228(b)(6)
d. Additional dependents deduction 		+ +  
2. MONTHLY ADJUSTED GROSS INCOME $ $ $
3. PERCENTAGE SHARE OF INCOME
(Each parent's income from line 2 divided by Combined Income) 		% %
100%
4. BASIC OBLIGATION
(Use Line 2 combined to find amount from schedule.) 		    $
5. ADJUSTMENTS (Expenses paid directly by each parent)
a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work-related child care costs.) Work and Education Related Child Care Costs

$

$ 		 
b. Extraordinary Medical Expenses (Uninsured only) and Children's Portion of Health Insurance Premium Costs.
 		$ $  
c. Extraordinary Expenses (Agreed to by parents or by order of the court.)
 		$ $  
d. Minus Extraordinary Adjustments (Agreed to by parents or by order of court.)
 		     
e. Total Adjustments (For each column, add 5a, 5b, and 5c. Subtract Line 5d. Add the parent's totals together for Combined amount.)
 		$ $ $
6. TOTAL SUPPORT OBLIGATION
(Add line 4 and line 5e Combined.) 		    $
7. EACH PARENT'S SHARE OF THE TOTAL CHILD SUPPORT OBLIGATION (Line 3 x line 6 for each parent.) $ $  
8. PAYOR PARENT ADJUSTMENT
(Enter payor parent's line 5e.) 		$ $  
9. RECOMMENDED CHILD SUPPORT ORDER
(Subtract line 8 from line 7 for the payor parent only. Leave payee parent column blank.) 		$ $  
PART II. ABILITY TO PAY CALCULATION
(Complete if the payor parent's adjusted monthly gross income is below $1,550.)
10. Spendable Income
(0.80 x line 2 for payor parent only.) 		     
11. Self Support Reserve $500 $500  
12. Income Available for Support
(Line 10 - line 11. If less than $50, then $50) 		     
13. Adjusted Child Support Order
(Lessor of Line 9 and Line 12.) 		     

Comments, calculations, or rebuttals to schedule or adjustments if payor parent directly pays extraordinary expenses.
PREPARED BY: Date:


PART 6. ADJUSTMENT OF SHARES OF SUPPORT OBLIGATIONS.

§48-13-502. Extended shared parenting worksheet.
Child support for extended shared parenting cases shall be calculated using the following worksheet:
Worksheet B: extended shared parenting

IN THE FAMILY COURT OF ______________ COUNTY, WEST VIRGINIA
CASE NO. ____________
Mother: ___________________________ SS No.: __________
Father: ____________________________ SS No.: __________

           
Children SSN Date of Birth Children SSN Date of Birth
           
           
           
PART I. BASIC OBLIGATION Mother Father Combined
1. MONTHLY GROSS INCOME (Exclusive of overtime compensation) $ $  
a. Minus preexisting child support payment - -  
b. Minus maintenance paid - -  
c. Plus overtime compensation, if not excluded, and not to exceed 50%, pursuant to W. Va. Code §48-1-228(b)(6)
d. Additional dependent deduction 		+ +  
2. MONTHLY ADJUSTED GROSS INCOME $ $ $
3. PERCENTAGE SHARE OF INCOME (Each parent's income from line 2 divided by Combined
Income) 		% % 100%
4. BASIC OBLIGATION (Use line 2 Combined to find amount from Child Support Schedule.)     $
PART II. SHARED PARENTING ADJUSTMENT
5. Shared Parenting Basic Obligation (line 4 x 1.50)     $
6. Each Parent's Share (Line 5 x each parent's line 3) $ $  
7. Overnights with Each Parent (must total 365)     365
8. Percentage with Each Parent (Line 7 divided by 365) % % 100%
9. Amount Retained (Line 6 x line 8 for each parent) $ $  
10. Each Parent's Obligation (Line 6 - line 9) $ $  
11. AMOUNT TRANSFERRED FOR BASIC OBLIGATION (Subtract smaller amount on line 10 from larger amount on line 10. Parent with larger amount on line 10 owes the other parent the difference. Enter $0 for other parent. $ $  
PART III. ADJUSTMENTS FOR ADDITIONAL EXPENSES (Expenses paid directly by each parent.)
12a. Work-Related Child Care Costs Adjusted for Federal Tax Credit (0.75 x actual work- related child care costs.) Work and Education Related Child Care Costs $ $  
12b. Extraordinary Medical Expenses (Uninsured only) and Children's Portion of Health Insurance Premium Costs. $ $  
12c. Extraordinary Additional Expenses (Agreed to by parents or by order of the court.) $ $  
12d. Minus Extraordinary Adjustments (Agreed to by parents or by order of the court.) $ $  
12e. Total Adjustments (For each column, add 11a, 11b, and 11c. Subtract line 11d. Add the parent's totals together for Combined amount.) $ $ $
13. Each Parent's Share of Additional Expenses (Line 3 x line 12e Combined.) $ $  
14. Each Parent's Net Share of Additional Direct Expenses (Each parent's line 13- line 12e. If negative number, enter $0) $ $  
15. AMOUNT TRANSFERRED FOR ADDITIONAL EXPENSES (Subtract smaller amount on line 14 from larger amount on line 14. Parent with larger amount on line 14 owes the other parent the difference. Enter $0 for other parent.) $ $  
PART IV. RECOMMENDED CHILD SUPPORT ORDER
16. TOTAL AMOUNT TRANSFERRED (Line 11 + line 15) $ $  
17. RECOMMENDED CHILD SUPPORT ORDER (Subtract smaller amount on line 16 from larger amount on line 16. Parent with larger amount on line 16 owes the other parent the difference.) $ $  
Comments, calculations, or rebuttals to schedule or adjustments
PREPARED BY: Date:



§48-13-601. Adjustment for child care.
(a) Legislative findings and legislative intent. -- The Legislature finds that nationally twenty- six percent of all people live in poverty, while in West Virginia, forty-six percent of all single mothers live in poverty. The Legislature also finds that child care subsidies are less available for persons who are pursuing education and that education increases a person's earning potential and makes it less likely that a person will live at or near the poverty level. Therefore, it is the intent of the Legislature to include work and education related child care expenses in the child support calculation.
(a) (b) The amount of the federal tax credit for child care expenses that can be realized by the custodial parent shall be approximated by deducting twenty-five percent from work-related child care costs, except that no such deduction shall be made for custodial parents with monthly gross incomes below the following amounts:
(1) One child--$1,150;
(2) Two children--$1,550;
(3) Three children--$1,750;
(4) Four children--$1,950;
(5) Five children--$2,150; and
(6) Six or more children--$2,350.
(b) Work-related child care costs related to work and education net of any adjustment for the child care tax credit shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.
ARTICLE 17: WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION
§48-17-101. Creation of Support Enforcement Commission; number of members.
The West Virginia Support Enforcement Commission, consisting of eight members, is hereby created in the Department of Health and Human Resources and may use the administrative support and services of that department. The Commission is not subject to control, supervision or direction by the Department of Health and Human Resources, but is an independent, self-sustaining commission that shall have the powers and duties specified in this chapter.
The Commission is a part-time commission whose members perform such duties as specified in this chapter. The ministerial duties of the Commission shall be administered and carried out by the Commissioner of the Bureau for Child Support Enforcement, with the assistance of such staff of the Department of Health and Human Resources as the Secretary may assign.
Each member of the Commission shall devote the time necessary to carry out the duties and obligations of the office and the six seven members appointed by the Governor may pursue and engage in another business, occupation or gainful employment that is not in conflict with the duties of the Commission.
While the Commission is self-sustaining and independent, it, its members, its employees and the Commissioner are subject to article nine-a of chapter six, chapter six-b, chapter twenty-nine-a and chapter twenty-nine-b of this code.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT
§48-18-103. Organization and employees.
(a) The Commissioner shall organize the work of the Bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.
(b) The Commissioner shall employ a sufficient number of employees in the position of Bureau for Child Support Enforcement attorney so as to provide for the effective and efficient operation of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement attorneys shall be distributed geographically as determined by the Commissioner.
(b) (c) The Secretary may transfer employees and resources of the Department to the Bureau for Child Support Enforcement as may be necessary to fulfill the duties and responsibilities of the Bureau under this chapter: Provided, That the Secretary may not transfer employees of other divisions and agencies within the Department to the Bureau for Child Support Enforcement without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.
(c) (d) The Commissioner, if he or she deems such action necessary, may hire legal counsel for the Division, notwithstanding the provisions of section two, article three, chapter five of this code or any other code provision to the contrary, or may request the Attorney General to appoint assistant attorneys general counsel who shall perform such duties as may be required by the Bureau. The Attorney General, in pursuance of such request, may select and appoint assistant attorneys general counsel to serve during the will and pleasure of the Attorney General, and such assistants shall be paid out of any funds allocated and appropriated to the Child Support Enforcement Fund.
(d) (e) The Commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter. §48-18-108. Fees.
(a) When the Bureau for Child Support Enforcement provides child support collection services either to a public assistance recipient or to a party who does not receive public assistance, the Bureau for Child Support Enforcement shall, upon written notice to the obligor, charge a monthly collection fee equivalent to the full monthly cost of the services, in addition to the amount of child support which was ordered by the court. The fee shall be deposited in the Child Support Enforcement Fund. The service fee assessed may not exceed ten percent of the monthly court-ordered child support and may not be assessed against any obligor who is current in payment of the monthly court- ordered child support payments: Provided, That this fee may not be assessed when the obligor is also a recipient of public assistance.
(b) Except for those persons applying for services provided by the Bureau for Child Support Enforcement who are applying for or receiving public assistance from the Division of Human Services or persons for whom fees are waived pursuant to a legislative rule promulgated pursuant to this section, all applicants shall pay an application fee of twenty-five dollars.
(c) Fees imposed by state and federal tax agencies for collection of overdue support shall be imposed on the person for whom these services are provided. Upon written notice to the obligee, the Bureau for Child Support Enforcement shall assess a fee of twenty-five dollars to any person not receiving public assistance for each successful federal tax interception. The fee shall be withheld prior to the assistance for each successful federal tax interception. The fee shall be withheld prior to the release of the funds received from each interception and deposited in the Child Support Enforcement Fund established pursuant to section 18-107.
(d) In any action brought by the Bureau for Child Support Enforcement, the court shall order that the obligor shall pay attorney fees for the services of the attorney representing the Bureau for Child Support Enforcement in an amount calculated at a rate similar to the rate paid to court- appointed attorneys paid pursuant to section thirteen-a, article twenty-one, chapter twenty-nine of this code and all court costs associated with the action: Provided, That no such award shall be made when the court finds that the award of attorney's fees would create a substantial financial hardship on the obligor or when the obligor is a recipient of public assistance. Further, the Bureau for Child Support Enforcement may not collect such fees until the obligor is current in the payment of child support. No court may order the Bureau for Child Support Enforcement to pay attorney's fees to any party in any action brought pursuant to this chapter.
(e) This section shall not apply to the extent it is inconsistent with the requirements of federal law for receiving funds for the program under Title IV-A and Title IV-D of the Social Security Act, United States Code, article three, Title 42, Sections 601 to 613 and United States Code, Title 42, Sections 651 to 662.
(f) The commission shall, by legislative rule promulgated pursuant to chapter twenty-nine-a of this code, describe the circumstances under which fees charged by the Bureau for Child Support Enforcement may be modified or waived and such rule shall provide for the waiver of any fee, in whole or in part, when such fee would otherwise be required to be paid under the provisions of this chapter. Further, such rule shall initially be promulgated as an emergency rule pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
§48-18-112. Cooperation with other states in the enforcement of child support.
(a) The Bureau for Child Support Enforcement shall cooperate with any other state in the following:
(1) In establishing paternity;
(2) In locating an obligor residing temporarily or permanently in this state, against whom any action is being taken for the establishment of paternity or the enforcement of child and spousal support;
(3) In securing compliance by an obligor residing temporarily or permanently in this state, with an order issued by a court of competent jurisdiction against such obligor for the support and maintenance of a child or children or the parent of such child or children; and
(4) In carrying out other functions necessary to a program of child and spousal support enforcement.
(b) The Commission Commissioner shall, by legislative rule, establish procedures necessary to extend the Bureau for Child Support Enforcements' system of withholding under part 14-401, et seq. article fourteen of this chapter, so that such system may include withholding from income derived within this state in cases where the applicable support orders were issued in other states, in order to assure that child support owed by obligors in this state or any other state will be collected without regard to the residence of the child for whom the support is payable or the residence of such child's custodial parent.
§48-18-113. Disbursements of amounts collected as support.
(a) Amounts collected as child or spousal support by the Bureau for Child Support Enforcement shall be distributed within two business days after receipt from the employer or other source of periodic income. The amounts collected as child support shall be distributed by the Bureau for Child Support Enforcement in accordance with the provisions for distribution set forth in 42 U.S.C. §657. The Commission Commissioner shall promulgate a legislative rule to establish the appropriate distribution as may be required by the federal law.
(b) Any payment required to be made under the provisions of this section to a family shall be made to the resident parent, legal guardian or caretaker relative having custody of or responsibility for the child or children.
(c) The commission shall establish bonding requirements for employees of the Bureau for Child Support Enforcement who receive, disburse, handle or have access to cash.
(d) (c) The Commissioner shall maintain methods of administration which are designed to assure that employees of the Bureau for Child Support Enforcement or any persons employed pursuant to a contract who are responsible for handling cash receipts do not participate in accounting or operating functions which would permit them to conceal in the accounting records the misuse of cash receipts: Provided, That the Commissioner may provide for exceptions to this requirement in the case of sparsely populated areas in this state where the hiring of unreasonable additional staff in the local office would otherwise be necessary.
(e) (d) No penalty or fee may be collected by or distributed to a recipient of Bureau for Child Support Enforcement services from the State Treasury or from the Child Support Enforcement Fund when child support is not distributed to the recipient in accordance with the time frames established herein.
(f) (e) For purposes of this section, 'business day' means a day on which state offices are open for regular business.
§48-18-117. Obtaining support from federal tax refunds.
The Commission Commissioner shall, by legislative rule promulgated pursuant to chapter twenty-nine-a of this code, place in effect procedures necessary for the Bureau for Child Support Enforcement to obtain payment of past due support from federal tax refunds from overpayments made to the Secretary of the Treasury of the United States. The Bureau for Child Support Enforcement shall take all steps necessary to implement and utilize such procedures.
§48-18-118. Obtaining support from state income tax refunds.
(a) The Tax Commissioner shall establish procedures necessary for the Bureau for Child Support Enforcement to obtain payment of past due support from state income tax refunds from overpayment made to the Tax Commissioner pursuant to the provisions of article twenty-one, chapter eleven of this code.
(b) The Commission Commissioner shall, by legislative rule promulgated pursuant to chapter twenty-nine-a of this code, establish procedures necessary for the Bureau for Child Support Enforcement to enforce a support order through a notice to the Tax Commissioner which will cause any refund of state income tax which would otherwise be payable to an obligor to be reduced by the amount of overdue support owed by such obligor.
(1) Such legislative rule shall, at a minimum, prescribe:
(A) The time or times at which the Bureau for Child Support Enforcement shall serve on the obligor or submit to the Tax Commissioner notices of past due support;
(B) The manner in which such notices shall be served on the obligor or submitted to the Tax Commissioner;
(C) The necessary information which shall be contained in or accompany the notices;
(D) The amount of the fee to be paid to the Tax Commissioner for the full cost of applying the procedure whereby past due support is obtained from state income tax refunds; and
(E) Circumstances when the Bureau for Child Support Enforcement may deduct a twenty-five dollar fee from the obligor's state income tax refund. Such rule This procedure may not require a deduction from the state income tax refund of an applicant who is a recipient of assistance from the Bureau for Children and Families in the form of temporary assistance for needy families.
(2) Withholding from state income tax refunds may not be pursued unless the Bureau for Child Support Enforcement has examined the obligor's pattern of payment of support and the obligee's likelihood of successfully pursuing other enforcement actions, and has determined that the amount of past due support which will be owed, at the time the withholding is to be made, will be one hundred dollars or more. In determining whether the amount of past due support will be one hundred dollars or more, the Bureau for Child Support Enforcement shall consider the amount of all unpaid past due support, including that which may have accrued prior to the time that the Bureau for Child Support Enforcement first agreed to enforce the support order.
(c) The Commissioner of the Bureau for Child Support Enforcement shall enter into agreements with the Secretary of the Treasury and the Tax Commissioner, and other appropriate governmental agencies, to secure information relating to the social security number or numbers and the address or addresses of any obligor, in order to provide notice between such agencies to aid the Bureau for Child Support Enforcement in requesting state income tax deductions and to aid the Tax Commissioner in enforcing such deductions. In each such case, the Tax Commissioner, in processing the state income tax deduction, shall notify the Bureau for Child Support Enforcement of the obligor's home address and social security number or numbers. The Bureau for Child Support Enforcement shall provide this information to any other state involved in processing the support order.
(d) For the purposes of this section, 'past due support' means the amount of unpaid past due support owed under the terms of a support order to or on behalf of a child, or to or on behalf of a minor child and the parent with whom the child is living, regardless of whether the amount has been reduced to a judgment or not.
(e) The Bureau for Child Support Enforcement may, under the provisions of this section, enforce the collection of past due support on behalf of a child who has reached the age of majority.
(f) The legislative rule promulgated by the commission pursuant to the provisions of this section and pursuant to chapter twenty-nine-a of this code, procedure shall, at a minimum, provide that prior to notifying the Tax Commissioner of past due support, a notice to the obligor as prescribed under subsection (a) of this section shall:
(1) Notify the obligor that a withholding will be made from any refund otherwise payable to such obligor;
(2) Instruct the obligor of the steps which may be taken to contest the determination of the Bureau for Child Support Enforcement that past due support is owed or the amount of the past due support; and
(3) Provide information with respect to the procedures to be followed, in the case of a joint return, to protect the share of the refund which may be payable to another person.
(g) If the Bureau for Child Support Enforcement is notified by the Tax Commissioner that the refund from which withholding is proposed to be made is based upon a joint return, and if the past due support which is involved has not been assigned to the Department of Health and Human Resources, the Bureau for Child Support Enforcement may delay distribution of the amount withheld until such time as the Tax Commissioner notifies the Bureau for Child Support Enforcement that the other person filing the joint return has received his or her proper share of the refund, but such delay shall not exceed six months.
(h) In any case in which an amount is withheld by the Tax Commissioner under the provisions of this section and paid to the Bureau for Child Support Enforcement, if the Bureau for Child Support Enforcement subsequently determines that the amount certified as past due was in excess of the amount actually owed at the time the amount withheld is to be distributed, the agency shall pay the excess amount withheld to the obligor thought to have owed the past due support or, in the case of amounts withheld on the basis of a joint return, jointly to the parties filing such the return.
(i) The amounts received by the Bureau for Child Support Enforcement shall be distributed in accordance with the provisions for distribution set forth in 42 U.S.C. §657. The commission shall promulgate a legislative rule to establish the appropriate distribution as may be required by the federal law.
§48-18-119. Obtaining support from unemployment compensation benefits.
(a) The Commissioner shall determine on a periodic basis whether individuals receiving unemployment compensation owe child support obligations which are being enforced or have been requested to be enforced by the Bureau for Child Support Enforcement. If an individual is receiving such compensation and owes any such child support obligation which is not being met, the Bureau for Child Support Enforcement shall enter into an agreement with such individual to have specified amounts withheld otherwise payable to such individual, and shall submit a copy of such agreement to the Bureau of employment programs. In the absence of such agreement, the Bureau for Child Support Enforcement shall bring legal process to require the withholding of amounts from such compensation.
(b) The Secretary shall enter into a written agreement with the Bureau of Employment Programs for the purpose of withholding unemployment compensation from individuals with unmet support obligations being enforced by the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement shall agree only to a withholding program that it expects to be cost effective, and, as to reimbursement, shall agree only to reimburse the Bureau of employment programs for its actual, incremental costs of providing services to the Bureau for Child Support Enforcement.
(c) The commission shall promulgate a procedural rule for selecting cases to pursue through the withholding of unemployment compensation for support purposes. This rule shall be designed to ensure maximum case selection and minimal discretion in the selection process.
(d) The commissioner shall, not less than annually, provide a receipt to an individual who requests a receipt for the support paid through the withholding of unemployment compensation, if receipts are not provided through other means.
(e) The Commissioner shall, through direct contact with the Bureau of Employment Programs, process cases through the Bureau of Employment Programs in this state, and shall process cases through support enforcement agencies in other states. The Commissioner shall receive all amounts withheld by the Bureau of Employment Programs in this state, forwarding any amounts withheld on behalf of support enforcement agencies in other states to those agencies.
(f) At least one time per year, the commission shall review and document program operations, including case selection criteria established under subsection (c) of this section, and the costs of the withholding process versus the amounts collected and, as necessary, modify procedures and renegotiate the services provided by the Bureau of employment programs to improve program and cost effectiveness.
(g) (b) For the purposes of this section:
(1) 'Legal process' means a writ, order, summons or other similar process in the nature of garnishment which is issued by a court of competent jurisdiction or by an authorized official pursuant to an order to such court or pursuant to state or local law.
(2) 'Unemployment compensation' means any compensation under state unemployment compensation law (including amounts payable in accordance with agreements under any federal unemployment compensation law). It includes extended benefits, unemployment compensation for federal employees, unemployment compensation for ex-servicemen, trade readjustment allowances, disaster unemployment assistance, and payments under the Federal Redwood National Park Expansion Act.
§48-18-121. Providing information to consumer reporting agencies; requesting consumer credit reports for child support purposes.

(a) For purposes of this section, the term 'consumer reporting agency' means any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages, in whole or in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
(b) The Commission Commissioner shall propose and adopt a procedural rule in accordance with the provisions of sections four and eight, article three, chapter twenty-nine-a of this code, establishing establish procedures whereby information regarding the amount of overdue support owed by an obligor will be reported periodically by the Bureau for Child Support Enforcement to any consumer reporting agency, after a request by the consumer reporting agency that it be provided with the periodic reports.
(1) The procedural rule adopted by the commission procedures shall provide that any information with respect to an obligor shall be made available only after notice has been sent to the obligor of the proposed action, and such obligor has been given a reasonable opportunity to contest the accuracy of the information.
(2) The procedural rule adopted procedures shall afford the obligor with procedural due process prior to making information available with respect to the obligor.
(c) The information made available to a consumer reporting agency regarding overdue support may only be made available to an entity that has furnished evidence satisfactory to the Bureau that the entity is a consumer reporting agency as defined in subsection (a) of this section.
(d) The Bureau for Child Support Enforcement may impose a fee for furnishing such information, not to exceed the actual cost thereof.
(e) The Commissioner of the Bureau for Child Support Enforcement, or her or his designee, may request a consumer reporting agency to prepare and furnish to the Bureau for Child Support Enforcement a consumer report for purposes relating to child support, by certifying to the consumer reporting agency that:
(1) The consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of such payments in order to set an initial or modified child support award;
(2) The paternity of the child of the individual has been established or acknowledged by the individual in accordance with state law;
(3) The individual whose report is being requested has been given at least ten days' prior notice of such the request by certified mail to his or her last known address that such report is being requested; and
(4) The consumer report will be kept confidential, will be used solely for a purpose described in subdivision (1) of this subsection and will not be used in connection with any other civil, administrative or criminal proceeding or for any other purpose. ARTICLE 19. BUREAU FOR CHILD SUPPORT ENFORCEMENT ATTORNEY
§48-19-102. Appointment of Bureau for Child Support Enforcement attorneys
(a) The Bureau for Child Support Enforcement shall employ twenty-one employees in the position of Bureau for Child Support Enforcement attorney, and the offices of the Bureau for Child Support Enforcement attorneys shall be distributed geographically so as to provide an office for each of the following areas of the state:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer, Monroe and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier and Pocahontas;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
(b) (a) Each Bureau for Child Support Enforcement attorney shall be appointed by the Commissioner of the Bureau for Child Support Enforcement. The Bureau for Child Support Enforcement attorneys shall be duly qualified attorneys licensed to practice in the courts of this state. Bureau for Child Support Enforcement attorneys shall be exempted from the appointments in the indigent cases which would otherwise be required pursuant to article twenty-one, chapter twenty- nine of this code.
(c) (b) Nothing contained herein shall prohibit the Commissioner from temporarily assigning, from time to time as caseload may dictate, a Bureau for Child Support Enforcement attorney from one geographical area to another geographical area.
(d) (c) The Bureau for Child Support Enforcement attorney is an employee of the Bureau for Child Support Enforcement."
On motion of Delegates Staton and Amores, the amendment was amended on page two, article eleven, section one hundred five, line five, following the word "of", by striking out the words "July, two thousand five" and inserting in lieu thereof "January, two thousand six";
On page three, article thirteen, section four hundred three, line twelve, immediately before the word "child" by inserting the phrase " After the first day of January, two thousand six" and a comma.
And,
On page six, article thirteen, section five hundred two, line three, immediately before the word "child" by inserting the phrase "After the first day of January, two thousand six" and a comma.
The Committee amendment, as amended, was then adopted.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 378), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
H. B. 3340, Excluding certain employment-related expenses from the definition of gross income for purposes of determining child support; on third reading, coming up in regular order, having been read a second time in earlier proceedings and advanced to third reading was reported by the Clerk.
Having been engrossed, the bills (H. B. 3094 and H. B. 3340) were then read a third time and put upon their passage.
On the passage of the bills, the yeas and nays were taken (Roll No. 379), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (H. B. 3094 and H. B. 3340) passed.
An amendment to the title of H. B. 3094, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 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, §48-18-121 of said code; and to amend and reenact §48-19-102 said code, all relating to child support and enforcement; modifying the definition of 'substantial change' justifying the modification of a support order; including education related child care expenses in the child support calculation; eliminating the twenty-five percent reduction to the child support adjustment; repealing authority of the West Virginia Support Enforcement Commission to promulgate rules; repealing certain duties of the commission; repealing authority of Bureau of 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 of 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 of the House communicate to the Senate the action of the House of Delegates on Consent Calendar bills and request concurrence therein.
Committee Reports

On motion for leave, a resolution was introduced (Originating in the Committee on Pensions and Retirement and reported with the recommendation that it be adopted, but that it first be referred to the Committee on Rules), which was read by its title, as follows:
By Delegates Stalnaker, Manchin, Williams, Browning, Frederick, Hall and Duke:
H. C. R. 73--"Requesting the Joint Committee on Government and Finance to conduct the following studies: the coordination of benefits between social security and the various retirement plans administered by the Consolidated Public Retirement Board; the efficacy and feasibility of setting forth in a separate article uniform provisions common to all of the plans administered by the Consolidated Public Retirement Board; the adoption of the prudent investor rule for the Investment Management Board; the need for supplemental benefits for retirees of the Public Employees Retirement System and the Teachers Retirement System; and the state and adequacy of municipal policemens' and firemens' pension and relief funds, including an examination of permissive investments and restrictions on investments."
In the absence of objection, the Speaker referred the resolution to the Committee on Rules.
On motion for leave, a resolution was introduced (Originating in the Committee on Health and Human Resources and reported with the recommendation that it be adopted, but that it first be referred to the Committee on Rules), which was read by its title, as follows:
By Delegates Perdue, Boggs, Frederick, Hrutkay, Leach, Longstreth, Miley, Moore, Pino, Susman, Tucker, Ashley, Hall, Lane, Rowan, Schadler. Sumner and Wakim:

H. C. R. 74, "Requesting that the Joint Committee on Government Organization and Finance conduct a study to determine the need for a Colon Cancer Detection and Prevention Board within the Bureau of Public Health and the need for a colon cancer public awareness campaign to encourage increased participation in colon cancer screening programs in West Virginia."
 In the absence of objection, the Speaker referred the resolution to the Committee on Rules.
On motion for leave, a resolution was introduced (Originating in the Committee on Banking and Insurance and reported with the recommendation that it be adopted, but that it first be referred to the Committee on Rules), which was read by its title, as follows:
By Delegates K. White, R. M. Thompson, Hrutkay, Perry, Perdue, Barker, Butcher, Morgan, Beach, Iaquinta, Webster, Spencer, Hatfield, Hartman, Marshall, G. White, Roberts, Carmichael, Stevens, Azinger, Frich and Hamilton:

H. C. R. 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 ."
 In the absence of objection, the Speaker referred the resolution to the Committee on Rules.
On motion for leave, a resolution was introduced (Originating in the Committee on Industry and Labor and Economic Development and Small Business and reported with the recommendation that it be adopted, but that it first be referred to the Committee on Rules), which was read by its title, as follows:
By Delegates Browning, Poling, Frederick, Miley, Howard, Cann, Pethtel, Moore, Martin, Caputo, Perry, Stevens, Frich, Wysong, Blair, Sobonya, Hartman, Carmichael, G. White, Manchin and Longstreth:

H. C. R. 76--"Requesting that the Joint Committee on Government and Finance study the state minimum wage amount and its effects on government programs and the state economy."
In the absence of objection, the Speaker referred the resolution to the Committee on Rules.
Chairman Boggs, from the Committee on Roads and Transportation, submitted the following report, which was received:
Your Committee on Roads and Transportation has had under consideration:
H. B. 2853, Relating to the West Virginia Courtesy Patrol Program,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (H. B. 2853) was referred to the Committee on Finance.
Chairman Beane, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration:
H. B. 3328, Changing the name of the office of emergency services and specifying additional responsibilities,
And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:
Com. Sub. for H. B. 3328 -- "A Bill to amend and reenact §15-5-1, §15-5-2, §15-5-3 and §15-5-13 of the Code of West Virginia, 1931, as amended, all relating the Office of Emergency Services; changing the name of the Office of Emergency Services to the Division of Homeland Security and Emergency Management; transferring duties, functions, personnel and related entities; specifying qualifications of the Director; directing entities to coordinate and cooperate with the Secretary of the Department of Military Affairs and Public Safety as to the receipt of federal funds for homeland security and emergency services purposes; providing that the Governor may require certain reports from entities receiving services, equipment, supplies, materials or funds for homeland security and emergency services purposes; and requiring copies of reports to be furnished to the Legislature,"
With the recommendation that the committee substitute do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 3328) will be placed on the Consent Calendar.


Chairman Beane, from the Committee on Government Organization , submitted the following report, which was received:
Your Committee on Government Organization has had under consideration:
H. B. 2891, Relating to the reorganization of the executive branch of state government,
And reports the same back, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (H. B. 2891) to the Committee on Finance was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill was then taken up for immediate consideration.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted amending the bill on page three, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That §5-1B-1, §5-1B-2, §5-1B-3, §5-1B-4, §5-1B-5, §5-1B-6, §5-1B-7 and §5-1B-8 of the code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new article, designated §5A-6-1, §5A-6-2, §5A-6-3, §5A-6-4, §5A-6-5, §5A-6-6, §5A-6-7 and §5A-6-8; that §5A-7-4 of said code be amended and reenacted; that §5A-8-15 of said code be amended and reenacted; that §5B-3-4 and §5B-3-5 of said code be amended and reenacted; that §5F-2-2 of said code be amended and reenacted; and that §11-10A-6 and 11-10A-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 6. OFFICE OF TECHNOLOGY
§5A-6-1. Findings and purposes.

The Legislature finds and declares that information technology is essential to finding practical solutions to the everyday problems of government, and that the management goals and purposes of government are furthered by the development of compatible, linked information systems across government. Therefore, it is the purpose of this article to create, as an integral part of the Department of Administration, the Office of Technology with the authority to advise and make recommendations to all state spending units on their information systems.
§5A-6-2. Definitions.
As used in this article:
(a) "Information systems" means computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
(b) "Information technology" means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance and training, and includes the programs and routines used to employ and control the capabilities of data processing hardware;
(c) "Information equipment" includes central processing units, front-end processing units, miniprocessors, microprocessors and related peripheral equipment such as data storage devices, networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment, computer-based word processing systems other than memory typewriters and equipment and systems for computer networks;
(d) "Related services" include feasibility studies, systems design, software development and time-sharing services whether provided by state employees or others;
(e) "Telecommunications" means any transmission, emission or reception of signs, signals, writings, images or sounds of intelligence of any nature by wire, radio or other electromagnetic or optical systems. The term includes all facilities and equipment performing those functions that are owned, leased or used by the executive agencies of state government;
(f) "Chief Technology Officer" means the person holding the position created in section three of this article and vested with authority to assist state spending units in planning and coordinating information systems that serve the effectiveness and efficiency of the individual state spending units, and further the overall management goals and purposes of government; and
(g) "Experimental program to stimulate competitive research" (EPSCoR) means the West Virginia component of the national EPSCoR program which is designed to improve the competitive research and development position of selected states through investments in academic research laboratories and laboratory equipment. The recognized West Virginia EPSCoR, which is part of the office of technology, is the responsible organization for the coordination and submission of proposals to all federal agencies participating in the EPSCoR program.
§5A-6-3. Office of Technology; Chief Technology Officer; appointment and qualifications.

There is hereby created the Office of Technology within the Department of Administration. There shall also be a Chief Technology Officer, who shall be appointed by and shall serve at the will and pleasure of the Governor. The Chief Technology Officer shall have knowledge in the field of information technology, experience in the design and management of information systems and an understanding of the special demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability. §5A-6-4. Powers and duties; professional staff.
(a) With respect to all state spending units the Chief Technology Officer may:
(1) Develop an organized approach to information resource management for this state;
(2) Provide, with the assistance of the Information Services and Communications Division of the Department of Administration, technical assistance to the administrators of the various state spending units in the design and management of information systems;
(3) Evaluate, in conjunction with the information services and communications division, the economic justification, system design and suitability of information equipment and related services, and review and make recommendations on the purchase, lease or acquisition of information equipment and contracts for related services by the state spending units;
(4) Develop a mechanism for identifying those instances where systems of paper forms should be replaced by direct use of information equipment and those instances where applicable state or federal standards of accountability demand retention of some paper processes;
(5) Develop a mechanism for identifying those instances where information systems should be linked and information shared, while providing for appropriate limitations on access and the security of information;
(6) Create new technologies to be used in government, convene conferences and develop incentive packages to encourage the utilization of technology;
(7) Engage in any other activities as directed by the governor; and
(8) Charge a fee to the state spending units for evaluations performed and technical assistance provided under the provisions of this section. All fees collected by the Chief Technology Officer shall be deposited in a special account in the state treasury to be known as the "Chief Technology Officer Administration Fund". Expenditures from the fund shall be made by the chief technology officer for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code. Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be redesignated for other purposes by appropriation of the Legislature.
(b) With respect to executive agencies only, the Chief Technology Officer may:
(1) Develop a unified and integrated structure for information systems for all executive agencies;
(2) Establish, based on need and opportunity, priorities and time lines for addressing the information technology requirements of the various executive agencies of state government;
(3) Exercise such authority inherent to the chief executive of the state as the Governor may, by executive order, delegate, to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to the design and management of information systems and the purchase, lease or acquisition of information equipment and contracts for related services;
(4) Draw upon staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human resources from any executive agency and the most effective and efficient uses of the fiscal resources of executive agencies, to consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel necessary to carry out the work of the office and may approve reimbursement of costs incurred by employees to obtain education and training.
§5A-6-5. Notice of request for proposals by state spending units required to make purchases through the State Purchasing Division.

Any state spending unit that is required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information and telecommunication systems. The notice shall contain a brief description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer at the same time it submits its request for proposal to the State Purchasing Division.
§5A-6-6. Notice of request for proposals by state spending units exempted from submitting purchases to the State Purchasing Division.

(a) Any state spending unit that is not required to submit a request for proposal to the State Purchasing Division prior to purchasing goods or services shall notify the Chief Technology Officer, in writing, of any proposed purchase of goods or services related to its information or telecommunication systems. The notice shall contain a detailed description of the goods and services to be purchased. The state spending unit shall provide the notice to the Chief Technology Officer a minimum of ten days prior to the time it requests bids on the provision of the goods or services.
(b) If the Chief Technology Officer evaluates the suitability of the information and telecommunication equipment and related services under the provisions of subdivision (3), subsection (a), section four of this article and determines that the goods or services to be purchased are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the Chief Technology Officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than fifteen days following receipt of the notice from the Chief Technology Officer. §5A-6-7. Biannual report.
The Chief Technology Officer shall report biannually to the Legislative Joint Committee on Government and Finance on the activities of his or her office. §5A-6-8. Exemptions.
The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 7. INFORMATION SERVICES AND COMMUNICATIONS DIVISION.
§5A-7-4. Powers and duties of division generally; professional staff; telephone service.

(a) The Division is responsible for providing technical services and assistance to the various state spending units with respect to developing and improving data processing and telecommunications functions. The Division may provide training and direct data processing services to the various state agencies. The Division shall, upon request of the Chief Technology Officer, within the office of the governor provide technical assistance in evaluating the economic justification, system design and suitability of equipment and systems used in state government. The Director shall report to the Chief Technology Officer secretary.
(b) The Director is responsible for the development of personnel to carry out the technical work of the Division and may approve reimbursement of costs incurred by employees to obtain education and training.
(c) In consultation with the Adjutant General, Chairman of the Public Service Commission, the Superintendent of the State Police and the Director of the Office of Emergency Services, the Director is responsible for the development and maintenance of an information systems disaster recovery system for the State of West Virginia with sites in one or more locations isolated from reasonably perceived threats to the primary operation of state government. The Director shall develop specifications, funding mechanisms and participation requirements for all executive branch agencies to protect the State's essential data, information systems and critical government services in times of emergency, inoperativeness, or disaster. Each executive branch agency shall assist the Director in planning for its specific needs and provide to the Director any information or access to information systems or equipment that may be required in carrying out this purpose. No statewide or executive branch agency procurement of disaster recovery services may be initiated, let or extended without the expressed consent of the Director.
(c) (d) The Director may assess each state spending unit for the cost of any evaluation of the economic justification, system design and suitability of equipment and systems used by the state spending unit or any other technical assistance that is provided or performed by the Chief Technology Officer and the Division under the provisions of section four, article one-b six of this chapter.
(d) (e) The Director shall transfer any moneys received as a result of the assessments that he or she makes under subsection (c) (d) of this section to the Office of chief Technology officer. The Director shall report quarterly to the Joint Committee on Government and Finance on all assessments made pursuant to subsection (c) (d) of this section.
(e) (f) The Director shall maintain an accounting system for all telephone service to the state.
(f) (g) The provisions of this article do not apply to the Legislature or the Judiciary.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.§5A-8-15. Records management and preservation of county records;
alternate storage of county records; Records Management and Preservation Board created; qualifications and appointment of members; reimbursement of expenses; staffing; rule-making authority; study of records management needs of state agencies; grants to counties.

The Legislature finds that the use of electronic technology and other procedures to manage and preserve public records by counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of any unit of each county, hereinafter referred to as a county government entity, whether organized and existing under a charter or under general law, shall promote the principles of efficient records management and preservation of local records. Such county governing entity may, as far as practical, follow the program established for the uniform management and preservation of county records as set out in a rule or rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as proposed by the Records Management and Preservation Board established herein.
(b) In the event any such governing body or the chief elected official of a unit of a county government entity decides to destroy or otherwise dispose of a county record, the governing body or such chief elected official may, prior to destruction or disposal thereof, offer the record to the Director of the Section of Archives and History of the Division of Culture and History for preservation of the record as a document of historical value. Unless authorized by the Supreme Court of Appeals, the records of courts of record and magistrate courts are not affected by the provisions of this section.
(c) A preservation duplicate of a county government entity record may be stored in any format, approved by the Board as hereinafter established, where the image of the original record is preserved in a form, including CD-ROM and optical image storage media, in which the image thereof is incapable of erasure or alteration and from which a reproduction of the stored record may be retrieved which truly and accurately depicts the image of the original county government record.
Except for those formats, processes and systems used for the storage of records on the effective date of this section, no alternate format for the storage of county government entity records described in this section is authorized for the storage of county government entity records unless the particular format has been approved pursuant to a legislative rule promulgated by the Board as herein created in accordance with the provisions of chapter twenty-nine-a of this code. The Board as herein established may prohibit the use of any format, process or system used for the storage of records upon its determination that the same is not reasonably adequate to preserve the records from destruction, alteration or decay.
Upon creation of a preservation duplicate which stores an original county government entity record in an approved format in which the image thereof is incapable of erasure or alteration and from which a reproduction of the stored record may be retrieved which truly and accurately depicts the image of the original record, the county government entity may destroy or otherwise dispose of the original in accordance with the provisions of section seven-c, article one, chapter fifty-seven of this code.
(d) There is hereby created a Records Management and Preservation Board for county government entities, to be composed of nine members.
(1) Three members shall serve ex officio. One member shall be the Commissioner of the Division of Culture and History who shall be the chairman of the Board. One member shall be the Administrator of the Supreme Court of Appeals. One member shall be the administrator of the governor's office of Chief Technology Officer or his or her designee.
(2) The Governor shall appoint six members of the Board with the advice and consent of the Senate. Not more than five appointments to the Board may be from the same political party and not more than three members may be appointed from the same congressional district. Of the six members appointed by the governor: (i) Three appointments shall be county elected officials, one of whom shall be a clerk of the county commission, one of whom shall be a circuit court clerk and one of whom shall be a county commissioner, to be selected from a list of nine names, including the names of three clerks of county commissions and three circuit court clerks submitted to the Governor by the West Virginia association of counties and the names of three county commissioners submitted to the governor jointly by the West Virginia association of counties and the West Virginia county commissioners association; (ii) one appointment shall be a county prosecuting attorney to be selected from a list of three names submitted by the West Virginia prosecuting attorneys institute; (iii) one appointment shall be an attorney licensed in West Virginia and in good standing as a member of the state bar with experience in real estate and mineral title examination, to be selected from a list of three names submitted by the state bar; and (iv) one appointment shall be a representative of a local historical or genealogical society.
(e) The members of the Board shall serve without compensation but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the Board. In the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state.
(f) The staff of the Board shall consist of the Director of the Archives and History Section of the Division of Culture and History and such staff as he or she may designate to assist him or her.
(g) On or before the first day of July, two thousand one, the Board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish a system of records management and preservation for county governments: Provided, That, for the retention and disposition of records of courts of record and magistrate courts, the implementation of the rule is subject to action of the West Virginia Supreme Court of Appeals. The proposed rule or rules shall include provisions for establishing a program of grants to county governments for making records management and preservation uniform throughout the state. The Board is not authorized to propose or promulgate emergency rules under the provisions of this section.
(h) On or before the first day of April, two thousand two, the Board, in cooperation with the administrator and state executive agencies under the general authority of the Governor, shall conduct a study of the records management and preservation needs of state executive agencies. Should the Board determine a need for a uniform records management and preservation system for such agencies, it shall recommend that the administrator propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for the implementation of a uniform records management and preservation system for state executive agencies.
(i) In addition to the fees charged by the clerk of the county commission under the provisions of section ten, article one, chapter fifty-nine of this code, the clerk shall charge and collect an additional one-dollar fee for every document containing less than ten pages filed for recording and an additional one-dollar fee for each additional ten pages of such document filed for recording. At the end of each month, the clerk of the county commission shall deposit into the special public records and preservation account as herein established in the State Treasury all fees collected: Provided, That the clerk may retain not more than ten percent of such fees for costs associated with the collection of the fees. Clerks shall be responsible for accounting for the collection and deposit in the state treasury of all fees collected by such clerk under the provisions of this section.
There is hereby created in the State Treasury a special account entitled the "public records and preservation revenue account". The account shall consist of all fees collected under the provisions of this section, legislative appropriations, interest earned from fees, investments, gifts, grants or contributions received by the Board. Expenditures from the account shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand one, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.
Subject to the above provision, the Board may expend the funds in the account to implement the provisions of this article. In expending funds from the account, the Board shall allocate not more than fifty percent of such funds for grants to counties for records management, access and preservation purposes. The Board shall provide for applications, set guidelines and establish procedures for distributing grants to counties including a process for appealing an adverse decision on a grant application. Expenditures from the account shall be for the purposes set forth in this section, including the cost of additional staff of the Division of Archives and History.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.

§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.

(a) The Joint Commission on Economic Development may review any procedural rule, interpretive rule or existing legislative rule and make recommendations concerning the rules to the Legislature.
(b) The Development Office and the Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, Regional Planning and Development Councils, West Virginia Rural Development Council, governor's Office of Technology and West Virginia Clearinghouse for Workforce Education shall each file a copy of its legislative rules with the commission as provided for in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty-nine-a of this code relating to economic development or workforce development shall file the rules with the Joint Commission at the time the rules are filed with the Secretary of State prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
(a) The Joint Commission on Economic Development shall study the following:
(1) The feasibility of establishing common regional configurations for such purposes as local workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers, complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the commission shall recommend legislation establishing common regional designations for all purposes the commission considers feasible. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:
(A) Geographic areas served by local educational agencies and intermediate educational agencies;
(B) Geographic areas served by post-secondary educational institutions and area vocational education schools;
(C) The extent to which the local areas are consistent with labor market areas;
(D) The distance that individuals will need to travel to receive services provided in the local areas; and
(E) The resources of the local areas that are available to effectively administer the activities or programs;
(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and
(3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the Bureau of Commerce and the Development Office that would allow the state to successfully compete in the new global economy.
(b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the Joint Commission to assemble and compile a tremendous amount of information. The Development Office will assist the Joint Commission in the collection and analysis of this information. The Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and development councils, West Virginia Rural Development Council, governor's Office of Technology and West Virginia Clearinghouse for Workforce Education all shall provide a copy of the agency's annual report as submitted to the Governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia Development Office. The Development Office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the Joint Commission on or before the thirty-first day of December.
(c) The Legislative Auditor shall provide to the Joint Commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.
(d) The Joint Commission shall complete the studies set forth in this section and any other studies the Joint Commission determines to undertake prior to the first day of December of each year and may make recommendations, including recommended legislation for introduction during the regular session of the Legislature.
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
5F-2-2. Power and authority of secretary of each department.
(a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:
(1) Employ and discharge within the office of the secretary such employees as may be necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;
(2) Cause the various agencies and boards to be operated effectively, efficiently and economically, and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;
(3) Eliminate or consolidate positions, other than positions of administrators or positions of board members, and name a person to fill more than one position;
(4) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;
(5) Reorganize internal functions or operations;
(6) Formulate comprehensive budgets for consideration by the Governor, and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from transfer, except that the use of appropriations from the State Road Fund transferred to the Office of the Secretary of the Department of Transportation is not a use other than the purpose for which such funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the secretary may transfer the funds formerly appropriated to such agency, board or function in order to implement such consolidation. The authority to transfer funds under this section shall expire on the thirtieth day of June, two thousand six five;
(7) Enter into contracts or agreements requiring the expenditure of public funds, and authorize the expenditure or obligating of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(8) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers heretofore granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;
(9) Conduct internal audits;
(10) Supervise internal management;
(11) Promulgate rules, as defined in section two, article one, chapter twenty-nine-a of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter, such promulgation to be in accordance with the provisions of chapter twenty-nine-a of this code;
(12) Grant or withhold written consent to the proposal of any rule, as defined in section two, article one, chapter twenty-nine-a of this code, by any administrator, agency or board within the department, without which written consent no proposal of a rule shall have any force or effect;
(13) Delegate to administrators such duties of the secretary as the secretary may deem appropriate from time to time to facilitate execution of the powers, authority and duties delegated to the secretary; and
(14) Take any other action involving or relating to internal management not otherwise prohibited by law.
(b) The secretaries of the departments hereby created shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:
(1) The elimination, reduction and restrictions in the use of the state's vehicle or other transportation fleet;
(2) The elimination, reduction and restrictions in the preparation of state government publications, including annual reports, informational materials and promotional materials;
(3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;
(4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;
(5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and
(6) The computerization of the functions of the state agencies and boards.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any such program and the powers granted to the secretary shall be so construed.
(d) The layoff and recall rights of employees within the classified service of the state as provided in subsections five and six, section ten, article six, chapter twenty-nine of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code, or the right of classified employees of the Board of Regents to the procedures and protections set forth in article twenty-six-b, chapter eighteen of this code. (e) Notwithstanding any provision of this code to the contrary the secretary of each department with authority over programs which are payors for prescription drugs, including but not limited to, the Public Employees Insurance Agency, the Children's Health Insurance Program, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, the Workers' Compensation Fund, state colleges and universities, public hospitals, state or local institutions such as nursing homes, veteran's homes, the Division of Rehabilitation, public health departments and the Bureau of Medical Services or other programs which are payors for prescription drugs, shall cooperate with the Office of the Pharmaceutical Advocate established pursuant to section four, article sixteen-d, chapter five of this code for the purpose of purchasing prescription drugs for any program over which they have authority.
CHAPTER 11. TAXATION.

ARTICLE 10A. WEST VIRGINIA OFFICE OF TAX APPEALS. §11-10A-6. Chief Administrative Law Judge; appointment, term and
vacancy; qualifications; compensation; conflicts of interest prohibited; removal.

(a) The Governor, with the advice and consent of the Senate, shall appoint the Chief Administrative Law Judge from a list of three qualified nominees submitted to the Governor by the Board of Governors of the West Virginia State Bar for a sixfour-year term. An appointment to fill a vacancy in the position shall be for the unexpired term.
(b) Prior to appointment, the Chief Administrative Law Judge shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state and who has five years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise or as a judge of a court of record.
(c) The salary of the Chief Administrative Law Judge shall be set by the Secretary of the Department of Tax and Revenue created in section two, article one, chapter five-f of this code. The salary shall be within the salary range for comparable chief administrative law judges as determined by the State Personnel Board created by section six, article six, chapter twenty-nine of this code.
(d) The Chief Administrative Law Judge, during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the Chief Administrative Law Judge from being a member of a national, state or local bar association or committee, or of any other similar type group or organization, or to prohibit the Chief Administrative Law Judge from engaging in the practice of law by representing himself, herself or his or her immediate family in their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as Chief Administrative Law Judge;
(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.
(e) The Governor may remove the Chief Administrative Law Judge only for incompetence, neglect of duty, official misconduct or violation of subsection (d) of this section, and removal shall be in the same manner as that specified for removal of elected state officials in section six, article six, chapter six of this code.
§11-10A-7. Powers and duties of Chief Administrative Law Judge; all employees, except Chief Administrative Law Judge members of classified service; qualifications of administrative law judges; closure of Tax Division Office of Hearings and Appeals and transfer of employees to Office of Tax Appeals.

(a) The Chief Administrative Law Judge is the chief executive officer of the Office of Tax Appeals and he or she may employ up to two administrative law judges, no more than one person to serve as executive director, no more than one staff attorney and other clerical personnel as necessary for the proper administration of this article. The Chief Administrative Law Judge may delegate administrative duties to other employees, but the Chief Administrative Law Judge shall be responsible for all official delegated acts.
(1) Upon the request of the Chief Administrative Law Judge, the Governor may appoint up to two administrative law judges as necessary for the proper administration of this article.
(1)(2) All employees of the Office of Tax Appeals, except the Chief Administrative Law Judge, shall be in the classified service and shall be governed by the provisions of the statutes, rules and policies of the classified service in accordance with the provisions of article six, chapter twenty-nine of this code.
(2)(3) Prior to employment by the Office of Tax Appeals, all administrative law judges shall be admitted to the practice of law in this state and have at least two years of full-time or equivalent part-time experience as an attorney with federal or state tax law expertise.
(3)(4) The Chief Administrative Law Judge and all administrative law judges shall be members of the public employees retirement system and do not qualify as participants in the judicial retirement system during their tenure with the office of tax appeals.
(4)(5) Notwithstanding any provisions of this code to the contrary, the Chief Administrative Law Judge shall employ any person not a temporary or probationary employee employed full-time and in good standing by the Tax Division in its hearings office applying for a position with the Office of Tax Appeals. A former Tax Division employee employed by the Office of Tax Appeals under the provisions of this subdivision shall retain his or her classified service classification, salary and benefits: Provided, That if an employee is currently classified as a chief administrative law judge, he or she may not retain that classification and must be reclassified as determined by the Secretary of the Department of tax and Revenue.
(b) The Chief Administrative Law Judge shall:
(1) Direct and supervise the work of the legal staff;
(2) Make hearing assignments;
(3) Maintain the records of the Office of Tax Appeals;
(4) Review and approve decisions of administrative law judges as to legal accuracy, clarity and other requirements;
(5) Publish decisions in accordance with the provisions of section sixteen of this article;
(6) Submit to the Legislature, on or before the fifteenth day of February, an annual report summarizing the Office of Tax Appeals' activities since the end of the last report period, including a statement of the number and type of matters handled by the Office of Tax Appeals during the preceding fiscal year and the number of matters pending at the end of the year; and
(7) Perform the other duties necessary and proper to carry out the purposes of this article. "
Having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 382), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2891) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 383), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell and Fragale.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2891) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Chairman White, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration:
S. B. 270, Relating to examinations of insurance and health care entities,
And,
S. B. 254, Relating to reinsurance intermediaries,
And reports the same back, by unanimous vote of the Committee, with the recommendation that they each do pass, but that they first be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bills (S. B. 270 and S. B. 254) were referred to the Committee on the Judiciary.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under further consideration:
H. B. 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,
And reports the same back with the recommendation that it do pass.
At 8:56 p.m., on motion of Delegate Staton, the House of Delegates recessed for a brief period, and reconvened at that time.
H. B. 2853, Relating to the West Virginia Courtesy Patrol Program, having been reported in earlier proceeding, was taken up for further consideration.
At the respective requests of Delegate Staton, and by unanimous consent, second reference of the bill to the Committee on Finance was abrogated, and it was taken up for immediate consideration, read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 384), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Brown, Ferrell, Fragale, Frederick, Hamilton, Long, Marshall, Miley and Thompson, Ron.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 385), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:
Absent And Not Voting: Brown, Ferrell, Fragale, Frederick, Long, Marshall, Miley and Thompson, Ron.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2853) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3328, Changing the name of the office of emergency services and specifying additional responsibilities having been reported in earlier proceeding, was taken up for further consideration.
At the respective requests of Delegate Staton, and by unanimous consent, the bill was taken up for immediate consideration, read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 386), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Frederick.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time and ordered to engrossment and third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 387), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Frederick.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3328) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 388), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Frederick.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3328) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 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 reported in earlier proceeding, was taken up for further consideration.
Having been engrossed, the bill was then read a third time.
Delegate DeLong arose and requested to be excused from voting on the passage of the bill under the provisions of House Rule 49, and the Speaker refused to excuse the Gentleman from voting, stating that he did not demonstrate a direct or personal pecuniary interest in the bill.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 389), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Ferrell, Fragale and Frederick.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2780) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
H. B. 2780 -- "A Bill to amend and reenact §29-22A-10 of the Code of West Virginia, 1931, as amended, 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; and relating to a corresponding reduction to the allocation of racetrack video lottery net terminal income to licensees."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 3153, Establishing the crime of railroad vandalism; having been read a second time in earlier proceeding, and advanced to third reading with an amendment pending, was taken up for further consideration.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 390), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell and Fragale.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §61-3-28 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §61-3-41 of said code be amended and reenacted, all to read as follows:
§61-3-28. Obstruction or removal of, or injury to, any part of railroad or canal; penalty.

If any person maliciously obstruct, remove or injure any part of a railroad, traction line or street railway, or canal, or any bridge or fixture thereof, or shall obstruct any machinery, work, engine or motor thereof, or any conveyor of electricity or other power used by the same, whereby the life of any traveler on such road or traction line or street railway is put in peril, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one year.
(a) Definitions.
(1) 'Railroad' means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including:
(i) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area; and
(ii) High-speed ground transportation systems that connect metropolitan areas but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation;
(2) 'Railroad carrier' means a person providing railroad transportation; railroad carrier including a right-of-way, track, bridge, yard, shop, station, tunnel, viaduct, trestle, depot, warehouse, terminal, railroad signal system, train control system, centralized dispatching system, or any other structure, appurtenance, or equipment owned, leased, or used in the operation of any railroad carrier including a train, locomotive, engine, railroad car, work equipment, rolling stock, or safety device. 'Railroad property' does not include administrative buildings, administrative offices, or administrative office equipment;
(3) 'Right-of-way' means the track or roadbed owned, leased, or operated by a railroad carrier which is located on either side of its tracks and which is readily recognizable to a reasonable person as being railroad property or is reasonably identified as such by fencing or appropriate signs;
(6) 'Yard' means a system of parallel tracks, crossovers, and switches where railroad cars are switched and made up into trains, and where railroad cars, locomotives and other rolling stock are kept when not in use or when awaiting repairs.
(b) Reckless disregard for railroad property--
Whoever, with reckless disregard for railroad property or the safety of another, commits an act causing damage to railroad property or bodily injury to another by an act including, but not limited to:
(1) Placing a small object, such as a coin, token, bottle cap, bottle, or can, on a railroad track or rail or dropping or throwing an object, at a locomotive or train;
(2) Taking, removing, defacing, altering, making with graffiti, or otherwise vandalizing a railroad sign, placard, or marker;
(3) Throwing a rock, baseball, or other dangerous object at a locomotive, railroad car, or train;
(4) Dropping a brick or other dangerous object from a bridge or other overpass onto a railroad right-of-way;
(5) Shooting a firearm or other dangerous weapon at a locomotive, railroad car, or train;
(6) Removing appurtenances from, damaging, or otherwise impairing the operation of any railroad signal system, including a train control system, centralized dispatching system, or highway-railroad grade crossing warning signal on a railroad owned, leased, or operated by any railroad carrier, without consent of the railroad carrier involved;
(7) Interfering or tampering with, or obstructing in any way, any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or connected with any railroad carrier, without consent of the railroad carrier involved; or
(8) Taking, stealing, removing, changing, addressing to, altering, or in any manner interfering with any journal bearing, brass, waste, packing, triple valve, pressure cock, brake, air hose, or any other part of the operating mechanism of any locomotive, engine, tender, coach, car, caboose, or motor car used or capable of being used by any railroad carrier in this state without consent of the railroad carrier.
Any person violating this subsection is guilty of a criminal offense. If railroad property damage does not exceed one thousand dollars and no bodily injury occurs to another as a result of any of the aforesaid acts, the person is guilty of a misdemeanor and, upon conviction thereof, the person shall pay the railroad carrier involved the cost to repair any railroad property damaged, and be fined not more than five hundred dollars, imprisoned in jail for not more than six months, or both fined and imprisoned. If railroad property damage exceeds one thousand dollars or bodily injury occurs to another as a result of any of the aforesaid acts, the person is guilty of a felony and, upon conviction thereof, the person shall pay the railroad carrier involved for the cost to repair any railroad property damaged, and shall be fined not more than ten thousand dollars, imprisoned for not less than one nor more than twenty years, or both fined and imprisoned.
(c) Intent to damage railroad property--
Whoever willfully damages or attempts to damage railroad property or willfully endangers or attempts to endanger the safety of another, by an act including, but not limited to:
(1) Taking, removing, defacing, altering, or otherwise vandalizing a railroad sign, placard or marker;
(2) Throwing a rock, baseball, or other dangerous object at a locomotive, railroad car or train;
(3) Dropping a brick or other dangerous object from a bridge or other overpass onto a railroad right-of-way;
(4) Shooting a firearm or other dangerous weapon at a locomotive, railroad car or train;
(5) Removing appurtenances from, damaging, or otherwise impairing the operation of any railroad signal system, including a train control system, centralized dispatching system, or highway-railroad grade crossing warning signal, on a railroad owned, leased, or operated by any railroad carrier, and without consent of the railroad carrier involved;
(6) Interfering or tampering with, or obstructing in any way, any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or connected with any railroad carrier without consent of the railroad carrier involved; or
(7) Taking, stealing, removing, changing, adding to, altering, or in any manner interfering with any journal bearing, brass, waste, packing, triple valve, pressure cock, brake, air hose, or any other part of the operating mechanism of any locomotive, engine, tender, coach, car, caboose, or motor car used or capable of being used by any railroad carrier in this state without consent of the railroad carrier is guilty of a felony.
If railroad property damage does not exceed five hundred dollars and no bodily injury occurs to another as a result of any of the aforesaid acts, upon conviction thereof, the person shall pay the railroad carrier involved, the cost to repair any railroad property damaged, and shall be fined not more than ten thousand dollars, imprisoned for no less than one nor more than ten years, or both fined and imprisoned. If railroad property damage exceeds five hundred dollars or bodily injury occurs to another as a result of any of the aforesaid acts, upon conviction thereof, the person shall pay the railroad carrier involved, the cost to repair any railroad property damaged, and shall be fined not more than twenty thousand dollars, imprisoned for no less than two nor more than twenty years, or both fined and imprisoned.
(d) The provisions of this section do not apply to any person employed by a railroad who is performing the duties assigned by the railroad or who is otherwise performing within the scope of his or her employment.
§61-3-41. Employees conservators of the peace; special railroad policemen; penalties.
Any person who shall willfully and unlawfully injure, impair, weaken, destroy or misplace any building, bridge, rail, track, sidetrack, switch, rail bonds, spur track, work engine, machine, locomotive, handcar, depot, car, trestle, telegraph line, telegraph pole, telegraph wire, telegraph instrument, or any other instrument, machine, invention, or mechanical or electrical appliance whatever, which may be, or now is used by any company operating or using any railroad or traction line or system, or other line or work of internal improvement, in this state; or who shall obstruct any corporation which is the owner or lessee of any railroad or traction line or system, or other work of internal improvement, in this state, in the use of any such property, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not exceeding one thousand dollars and imprisoned not exceeding six months. If the death of any person occur in consequence of any such unlawful act, the person or persons committing the same shall be guilty of murder and punished accordingly. Or if any person on a train, or locomotive, or passenger car, on any railroad or traction line or system, is maimed or disfigured by reason of any such unlawful act, the person convicted of causing the same shall be guilty of a felony, and shall be confined in the penitentiary not less than one nor more than twenty years.
If any person shall shoot or throw stones, or other dangerous missiles at or into any passenger car, or other railroad or traction car used for carrying passengers or other persons, while any such passenger or other person is within the same, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years. And if any person, whether a passenger or not, shall, while on any passenger car or on any train of cars, behave in a riotous or disorderly manner, he shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty-five nor more than two hundred dollars, and may, in the discretion of the court, be confined in jail not less than one nor more than six months, and may be ejected from such car or train by the person or persons in charge thereof; and such force as is necessary for that purpose may be used by such person or persons in charge of such passenger car or train of cars, with such other persons as they may call to their aid.
The conductor of every passenger car and flagmen flag person and brakemen brake person employed on such car, as well as the conductor of every train of railroad or traction cars, shall have all the powers of a conservator of the peace while in charge of such car or train.
Any railroad company owning, or leasing and operating, or using any railroad or traction line or system lying wholly or partially within this state, whether such railroad be operated by steam or electric power, may apply to the governor to appoint such citizen or citizens of this state as such railroad company may designate, to act as special police officers for such railroad or traction company, with the consent of such citizen or citizens; and the governor may, upon such application, appoint and commission such person or persons, or so many of them as he may deem proper, as such special police officers. Every police officer so appointed shall appear before some person authorized to administer oaths and take and subscribe the oath prescribed in the fifth section of the fourth article of the constitution, and shall file such oath with the clerk of the county commission, or other tribunal in lieu thereof, of the county in which he shall reside. He or she shall also file certified copies of such oath in the office of the secretary of state, and in the office of the clerk of the county commission, or other tribunal established in lieu thereof, of each county through which such railroad or any portion thereof may extend. Every police officer appointed under the provisions of this section shall be a conservator of the peace within each county in which any part of such railroad may be situated, and in which such oath or a certified copy thereof shall have been filed with the clerk of the county commission or other tribunal established in lieu thereof; and, in addition thereto, he shall possess and may exercise all the powers and authority, and shall be entitled to all the rights, privileges and immunities within such counties, as are now or hereafter may be vested in or conferred upon a deputy sheriff of such county. Any appointment made by the governor under the provisions of this section may be revoked by him or her for good cause shown, and such police officers may be removed from office for official misconduct, incompetence, habitual drunkenness, neglect of duty or gross immorality, in the same manner in which regularly elected or appointed county officers may be removed from office. Whenever any such railroad company shall desire to dispense with the services of any such police officer, it may file a notice to that effect, under its corporate seal, attested by its secretary, in each of the several offices in which such oath or certified copy thereof shall have been filed; and, thereupon, the powers of such the police officer shall cease and determine. Such police Police officers may wear such uniform and badge of authority, or either, as the railroad company, upon whose application they were appointed, may designate, and such railroad company shall pay them for all services rendered by them pursuant to such his or her appointment."
Delegate Overington moved to amend the Committee amendment as follows:
On page six of the amendment, section twenty-eight, line nine, after the word "imprisoned" and the period, by inserting the following:
"If any of the aforesaid acts are committed with the intent to maim, disfigure or kill another person or if another person is killed as a proximate result of any of the aforesaid acts, upon conviction thereof, the person shall be sentenced to punishment by death by lethal injection."
Unanimous consent having been obtained, and following brief discussion on the amendment, Delegate Overington then withdrew the same.
The Committee amendment was then adopted.
Having been engrossed, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 391), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Lane.
Absent And Not Voting: Ferrell, Fragale and Moore.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3153) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for H. B. 3153 - "A Bill to amend §61-3-28 of the Code of West Virginia, 1931, as amended; and to amend §61-3-41 of said code, all relating to creation of criminal offenses for damaging, stealing or injury to railroad property; defining terms; creating an offense for reckless disregard for railroad property; creating an offense for intentionally damaging railroad property; and providing penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leave of absence for the day was granted Delegate Fragale.
Miscellaneous Business

Delegate Perdue asked and obtained unanimous that the remarks of Delegate Mahan concerning her amendment to Com. Sub. for H. B. 2723 be printed in the Appendix to the Journal.
Delegate Frederick noted to the Clerk that he was absent when the votes were taken on Roll Nos. 384 through 389, and had he been present he would have voted "Yea" thereon.
Delegate Palumbo asked and obtained unanimous consent that the remarks of Delegate Spencer concerning H. B. 3208 be printed in the Appendix to the Journal.
At 9:23 p.m, the House of Delegates adjourned until 12:00 Meridian., Thursday, March 31, 2005.