__________*__________
Thursday, April 7, 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 Wednesday, April 6, 2005, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 49, Opposing the further designation of additional federal wilderness acreage within
the Monongahela National Forest in the State of West Virginia,
H. C. R. 66, Requesting the Joint Committee on Government and Finance study the
increasing role sanitarians play in protecting public health,
H. C. R. 75, Requesting the Joint Committee on Government and Finance to study statutory
standards and requirements governing practice of mid-level health care occupations and underwriting
guideline governing issuance of medical professional liability policies,
H. C. R. 83, Requesting the Secondary School Activities Commission to consider a rule amendment to provide at least two classes of competition in the end-of-school tournaments,
H. C. R. 84, Requesting the Joint Committee on Government and Finance to make a study
on education proposals of the West Virginia Department of Education entitled: West Virginia
ACHIEVES (5-year plan),
And,
S. C. R. 34, Requesting Division of Highways name bridge on Route 13, Raleigh County,
"Sergeant Billy Ray Holmes Memorial Bridge",
And reports the same back with the recommendation that they each be adopted.
On motion for leave, a resolution was introduced (Originating in the Committee on Rules and
reported with the recommendation that it be adopted), which was read by its title as follows:
By Delegates Craig, Amores, Anderson, Browning, Campbell, Cann, Caputo, Crosier,
Ellem, Howard, Iaquinta, Kominar, Longstreth, Manchin, Michael, Miley, Morgan,
Pethtel, Poling, Sobonya, Stalnaker, Stephens, Talbott, Ron Thompson, Trump and
Varner:
H. R. 36 - "Encouraging the 109th Congress to enact multi-emission legislation that will
provide reduction targets for nitrogen oxide, sulfur dioxide and mercury at reasonable and
appropriate levels and over periods of time that will provide certainty, stability and maximum
flexibility to electric power generators in meeting their air quality targets while maintaining electric
power reliability, availability and affordability."
Whereas, The State of West Virginia, its citizens and its industries have a shared interest
in improving air quality; and
Whereas, The quality of life in the State depends on a reliable supply of electric power; and
Whereas, The State's electric power generators must comply with multiple and sometimes
overlapping air quality requirements, the interpretation of which is often decided in courts of law;
and
Whereas, The time necessary for emission reduction-related litigation often reduces the time available for the installation of emission-reduction technologies and increases the costs of
compliance which eventually are passed on to consumers of electric power; and
Whereas, Congress has an opportunity to adopt a federal integrated strategy that establishes
aggressive but reasonable time frames and reduction targets for the nation's three highest priority
electric power plant emissions: nitrogen oxide, sulfur dioxide and mercury; and
Whereas, Such a multi-emission strategy will minimize interstate regulatory compliance
conflicts, lessen the need for costly, time-consuming litigation, allow for the design and deployment
of more cost-effective technologies, and continue the nation's progress for reducing potentially
harmful emissions in as cost-effective manner as possible without negatively impacting the reliability
of the nation's power supplies; therefore, be it
Resolved by the House of Delegates of West Virginia:
That the House of Delegates hereby encourages the 109th Congress to enact multi-emission
legislation that will provide reduction targets for nitrogen oxide, sulfur dioxide and mercury at
reasonable and appropriate levels and over periods of time that will provide certainty, stability and
maximum flexibility to electric power generators in meeting their air quality targets while
maintaining electric power reliability, availability and affordability; and, be it
Further Resolved, That the Clerk is herby directed to forward a copy of this resolution to
Senator Robert C. Byrd, Senator Jay Rockefeller, Congressman Alan Mollohan, Congresswoman
Shelley Moore Capito, Congressman Nick Joe Rahall and Governor Joe Manchin.
Delegates Spencer, Barker, Butcher, Caputo, Eldridge, Frederick, Hunt, Longstreth, Louisos,
Manchin, Martin, Paxton, Wakim, Walters, Webster, Wells and G. White offered the following
resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 97 - "Requesting the Joint Committee on Government and Finance study the
feasibility of a national park in the High Allegheny Region of West Virginia".
Whereas, The High Allegheny Region of West Virginia, which comprises portions of the
Monongahela National Forest, Blackwater Falls State Park, Seneca Rocks, portions of Canaan Valley and the Blackwater Canyon area, is an important natural, cultural, economic and recreational
resource in the state; and
Whereas, The High Allegheny Region of West Virginia has substantial natural areas and
habitats which are assets to the people of West Virginia and the nation and provide important
amenities for residents and visitors that encourage retirement home development, tourism and other
business development that is crucial to the future of the region and the state; and
Whereas, There is a need for consistent, professional and well-funded management of the
key natural areas and public lands in the High Allegheny Region of West Virginia in order to
conserve and enhance these important assets and to provide for optimal and sustainable economic
development of the area; and
Whereas, Economic studies have consistently shown important long-term economic benefits
from the creation of national parks to manage important natural areas and protected public lands; and
Whereas, West Virginia, although home to some of the most beautiful areas in the eastern
United States, has only four units of the National Park system, by far the lowest in the region; and
Whereas, There is reason to believe that establishment of a High Allegheny national park
in West Virginia will have a positive economic impact on the state in the following ways: (1)
Increased revenue for county governments in the form of payments from the National Park Service;
(2) increased employment from the National Park Service and from the related growth of the
tourism, retirement and recreational industries; (3) increased net migration to the area; (4) increased
private property values; (5) increased tax revenue for county governments from retirement home
ownership; (6) decreased local and state burden on public land infrastructure and management; (7)
increased tourism-related spending in local communities; and (8) improved management of key
natural areas and protected public lands; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of a national park in the High Allegheny Region of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to determine the benefits and costs of the development of a High Allegheny national park as well as
study the economic development potential, job creation potential and tourism value; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to determine the use of lands that could be incorporated in a High Allegheny national park; and, be
it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Boggs, Amores, Anderson, Argento, Armstead, Azinger, Beach, Brown, Campbell,
Cann, Canterbury, Caputo, Carmichael, Crosier, Doyle, Duke, Ennis, Evans, Frederick, Frich,
Hamilton, Hartman, Hatfield, Houston, Howard, Hunt, Iaquinta, Leggett, Long, Longstreth, Louisos,
Mahan, Manchin, Marshall, Martin, Michael, Miley, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino,
Poling, Proudfoot, Romine, Rowan, Schadler, Stalnaker, Stemple, Sumner, Susman, Swartzmiller,
Tabb, Talbott, Tansill, R. Thompson, R. M. Thompson, Trump, Tucker, Wakim, G. White,
Williams, Wysong and Yost offered the following resolution, which was read by its title and referred
to the Committee on Rules:
H. C. R. 98 - "Requesting the Joint Committee on Government and Finance study the
development of a coordinated deployment and operation of broadband Internet access throughout
the state.
Whereas, The Internet revolution is driving today's economy and that information
technology offers increased economic opportunities, higher living standards, more individual choices, and wider and more meaningful participation in government and public life; and
Whereas, Telecommunications in general, and the Internet in particular, are becoming
increasingly important to the efficiency and effectiveness of private and public sector entities; and
Whereas, Broadband accessibility and affordability is necessary for widespread economic
growth and sustainability but is lacking in many rural areas, which are often the last to be served
because of the high costs of infrastructure deployment and maintenance; and
Whereas, Development and implementation of rural broadband infrastructure and related
technologies also are vital to health care delivery and services, public safety, educational
opportunities and community enhancement; and
Whereas, West Virginia has seen substantial progress over the past several years in the
expansion and availability of high-speed Internet options, such as cable and DSL, across the state,
both business and residential customers in our State still lag the rest of the nation in overall use of
this new technology and its many beneficial applications; and
Whereas, New technologies such as broadband service and the benefits from these so
transcend the boundary lines of the public and private sectors that no single entity can plan for the
solution of these problems; and
Whereas, It is in the interest of this State to encourage continued wider development of
broadband Internet access to all West Virginians; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
development of a state-based strategy to establish affordable broadband Internet access for all
citizens and businesses in the state demanding it; and, be it
Further Resolved, That any study should include, at a minimum, a review of all available
broadband technologies, and inventory of, existing residential and commercial broadband service,
as well as a comprehensive inventory of the various broadband networks utilized by the State of
West Virginia and its political subdivisions, social and economic barriers of deploying broadband technologies, development of recommended activities to generate greater facilitation and use of
broadband technologies, intergovernmental cooperation and public-private partnerships, and review
long-range broadband technology deployment and investment programs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2006, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration the subject of memorial resolutions
and reports back resolutions relative thereto, sponsored by members of the Committee on Rules and
other members of the House, as follows:
By Mr. Speaker, Mr. Kiss, and Delegates Mahan, Susman, Ron Thompson and
Sumner:
H. R. 37 - "Commemorating the passing of Sterling T. Lewis, gentleman, soldier and
statesman from the County of Raleigh,"
By Mr. Speaker, Mr. Kiss, and Delegates Trump:
H. R. 38 - - "Memorializing the outstanding life of the Honorable Charles H. Haden, II,
accomplished jurist,"
By Mr. Speaker, Mr. Kiss, and Delegates Staton and Trump:
H. R. 39 - "Commemorating the life and lamenting the death of the Honorable Elizabeth V.
Hallanan, Senior District Court Judge, Southern District, and model of judicial integrity,"
By Mr. Speaker, Mr. Kiss, and Delegate Argento:
H. R. 40 - "Commemorating the life of C. Farrell Johnson, former member of the House of Delegates from the County of Nicholas,"
And,
By Mr. Speaker, Mr. Kiss, and Delegates Cann, Iaquinta, Fragale and Miley:
H. R. 41 - "In memory of Samuel A. Ellis, former member of the House of Delegates from
Harrison County",
With the recommendation that they each be adopted.
At the request of Delegate Staton, and by unanimous consent, the resolution (H. R. 37) was
taken up for immediate consideration, reported by the Clerk and adopted.
On motion for leave, a resolution was introduced (Originating in the Committee on Education
and reported with the recommendation that it be adopted), which was read by its title, as follows:
By Delegates Campbell, Williams, Louisos, Paxton and Wells:
H. C. R. 99 -"A Resolution Recommending that West Virginia's National representatives
research methods for securing waivers that would help the state better tailor No Child left Behind
for West Virginia students."
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor,
advising that on April 4, 2005, he approved S. B. 413 and S. B. 476; and H. B. 2333 and H. B. 2783.
Resolutions Introduced
Delegates Boggs, Argento, Barker, Beane, Brown, Browning, Butcher, Campbell, Cann,
DeLong, Eldridge, Ferrell, Hatfield, Hrutkay, Hunt, Iaquinta, Leach, Louisos, Miley, Morgan,
Palumbo, Perry, Pethtel, Pino, Poling, Spencer, Stalnaker, Staton, Stemple, Stephens, Swartzmiller,
Tucker, Varner, Webster, Wells, Wysong and Yost offered the following resolution, which was read
by its title and referred to the Committee on Rules:
H. C. R. 95 - "Requesting the Joint Committee on Government and Finance to study the
West Virginia Department of Transportation and the ways the Department of Transportation can
improve and maintain the state's roads and bridges and the ways the Department of Transportation can modernize West Virginia's key highways to support economic development, tourism, traffic
safety and promote the public welfare."
Whereas, It is critical that the State of West Virginia develops and maintains a modern
transportation system that can accommodate future growth in population, vehicle travel, tourism and
economic development; and
Whereas, West Virginia's extensive system of roads and bridges provides the State's 1.8
million residents and visitors with a high level of mobility; and
Whereas, West Virginia is one of only four states in the nation in which there is no county
or city ownership of highways; and
Whereas, West Virginia is responsible for maintaining more than ninety-four percent of all
public highway mileage (35,800 miles) in the State - the highest of such percentages in the nation;
and
Whereas, A November 2004 report by The Road Information Program (TRIP) shows that:
(1) More than one-in-three lane miles of road in West Virginia is in substandard condition; (2) thirty-
seven percent of West Virginia's bridges are in substandard condition and fifteen percent are
structurally deficient or functionally obsolete; (3) the average commuter in West Virginia now
spends an additional forty-three hours a year in traffic - more than a full working week - than in 1990
due to increased congestion on the State's highways; and (4) West Virginia's traffic fatality rate of
2.19 fatalities per 100 million vehicle miles of travel is nearly fifty percent higher than the national
average fatality rate of 1.50; and
Whereas, A November 2004 report by West Virginia University's Bureau of Business and
Economic Research entitled "Future of West Virginia's Highway System: A Comprehensive
Analysis of the West Virginia State Road Fund and Policy Options," reports that since peaking in
FY 1994, the real value of the State Road Fund has decreased over the last decade due to inflation
and increased West Virginia Division of Highway expenses; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to appoint an interim committee comprised of representatives appointed by the Speaker
of the House of Delegates and Senate President, and co-chaired by the Chair of the House Committee
on Roads and Transportation and the Chair of the Senate Committee on Transportation and
Infrastructure to study the West Virginia Department of Transportation and the ways the Department
of Transportation can improve and maintain the State's roads and bridges and the ways the
Department of Transportation can modernize West Virginia's key highways to support economic
development, tourism, traffic safety and promote the public welfare; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Michael, Border, Browning, Stalnaker, Evans, Ashley, Susman, Williams, Wakim,
Proudfoot, Cann, Leach, Carmichael, Boggs, R. M. Thompson, Varner, Frederick, Hall, H. White,
Kominar, Houston, G. White and Palumbo offered the following resolution, which was read by its
title and referred to the Committee on Rules:
H. C. R. 96 - "Requesting the Joint Committee on Government and Finance to study the
actions that may be undertaken to ensure the competitiveness of West Virginia's coal industry and
sustained production in excess of one hundred forty-four million tons each year.
Whereas, Coal is an integral component of West Virginia's history, society and economy;
and
Whereas, The West Virginia coal industry directly employees over forty thousand
individuals at an average annual wage in excess of fifty three thousand dollars per year and provides benefits to them and their families; and
Whereas, West Virginia's citizens and those of other states and nations rely daily on West
Virginia coal for energy and metallurgy in their productive and private lives; and
Whereas, West Virginia's coal industry underwrites much of the State budget through
severance, additional severance, transportation, business franchise, corporate net income and other
taxes within excess of two hundred sixty-five million in severance taxes alone flowing to the State
General Revenue Fund; and
Whereas, West Virginia's coal industry also underwrites much of the budgets of each of the
State's political subdivisions with more than eighteen million dollars each year flowing to counties
and municipalities; and
Whereas, West Virginia has nearly fifty-three billion tons of recoverable coal reserves,
enough for more than three hundred fifty years of production at current production levels; and
Whereas, West Virginia coal and coal miners are the world's finest and the State possesses
clear competitive and natural advantages in coal production in the world market place; and
Whereas, Scarcity of petroleum, natural gas and other fossil fuels and energy sources and
fine metallurgical coal itself and advances in clean coal technologies bode well for sustaining or
increasing the coal demand and price levels in future years; and
Whereas, The development of reserves in the Western United States and other nations, tax
disadvantages, permitting costs and difficulties, reclamation costs and the increasing difficulty and
cost of accessing the State's remaining coal reserves represent serious threats to the long-term
viability of West Virginia's coal industry; and
Whereas, In January, 2005, the State's coal industry was confronted with the largest tax
increase ever levied against any industry in the State's history; and
Whereas, The new fifty-six cents per ton additional severance tax was based on sustained
production of one hundred forty-four million tons of annual production in order to pay a designated
portion of the Workers' Compensation Fund debt each year; and
Whereas, Every business and industry in the State will enjoy economic relief in the form
of reduced Workers' Compensation premiums, the coal industry was the only industry asked to pay
a new tax without any reduction in other taxes; and
Whereas, The new fifty-six cents per ton additional severance tax when combined with the
other taxes paid by the State's coal industry cause the West Virginia coal industry to be the highest
taxed industry in the State; and
Whereas, The West Virginia coal industry has the highest tax burden of any coal producing
state in the Eastern or Midwestern United States; and
Whereas, It is more expensive and time consuming to permit a new mine or an expansion
in West Virginia than it is in any surrounding coal producing state; and
Whereas, If West Virginia producers cannot competitively sell their coal in today's
aggressive domestic and world coal markets, it will not be mined in West Virginia; and
Whereas, Actions must be taken to encourage investment in the West Virginia coal industry
as soon as possible so as to take advantage of the strong worldwide energy market, and to prepare
the industry for sustained production through the next two decades; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study what
urgent and immediate actions may be undertaken to ensure the competitiveness of West Virginia's
coal industry and sustained production in excess of one hundred forty-four million tons each year;
and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, two thousand six, on its finding, conclusions and recommendations
together with drafts of any legislation to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Spencer, Barker, Butcher, Caputo, Eldridge, Frederick, Hunt, Longstreth, Louisos,
Manchin, Martin, Paxton, Wakim, Walters, Webster, Wells and G. White offered the following
resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 97 - "Requesting the Joint Committee on Government and Finance study the
feasibility of a national park in the High Allegheny Region of West Virginia.
Whereas, The High Allegheny Region of West Virginia, which comprises portions of the
Monongahela National Forest, Blackwater Falls State Park, Seneca Rocks, portions of Canaan Valley
and the Blackwater Canyon area, is an important natural, cultural, economic and recreational
resource in the state; and
Whereas, The High Allegheny Region of West Virginia has substantial natural areas and
habitats which are assets to the people of West Virginia and the nation and provide important
amenities for residents and visitors that encourage retirement home development, tourism and other
business development that is crucial to the future of the region and the state; and
Whereas, There is a need for consistent, professional and well-funded management of the
key natural areas and public lands in the High Allegheny Region of West Virginia in order to
conserve and enhance these important assets and to provide for optimal and sustainable economic
development of the area; and
Whereas, Economic studies have consistently shown important long-term economic benefits
from the creation of national parks to manage important natural areas and protected public lands; and
Whereas, West Virginia, although home to some of the most beautiful areas in the eastern
United States, has only four units of the National Park system, by far the lowest in the region; and
Whereas, There is reason to believe that establishment of a High Allegheny national park
in West Virginia will have a positive economic impact on the state in the following ways: (1)
Increased revenue for county governments in the form of payments from the National Park Service;
(2) increased employment from the National Park Service and from the related growth of the
tourism, retirement and recreational industries; (3) increased net migration to the area; (4) increased private property values; (5) increased tax revenue for county governments from retirement home
ownership; (6) decreased local and state burden on public land infrastructure and management; (7)
increased tourism-related spending in local communities; and (8) improved management of key
natural areas and protected public lands; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
feasibility of a national park in the High Allegheny Region of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to determine the benefits and costs of the development of a High Allegheny national park as well as
study the economic development potential, job creation potential and tourism value; and, be it
Further Resolved, That the Joint Committee on Government and Finance is hereby requested
to determine the use of lands that could be incorporated in a High Allegheny national park; and, be
it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Delegates Boggs, Amores, Anderson, Argento, Armstead, Azinger, Beach, Brown,
Campbell, Cann, Canterbury, Caputo, Carmichael, Crosier, Doyle, Duke, Ennis, Evans, Frederick,
Frich, Hamilton, Hartman, Hatfield, Houston, Howard, Hunt, Iaquinta, Leggett, Long, Longstreth,
Louisos, Mahan, Manchin, Marshall, Martin, Michael, Miley, Palumbo, Paxton, Perdue, Perry,
Pethtel, Pino, Poling, Proudfoot, Romine, Rowan, Schadler, Stalnaker, Stemple, Sumner, Susman,
Swartzmiller, Tabb, Talbott, Tansill, R. Thompson, R. M. Thompson, Trump, Tucker, Wakim, G. White, Williams, Wysong and Yost offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 98 - "Requesting the Joint Committee on Government and Finance study the
development of a coordinated deployment and operation of broadband Internet access throughout
the state."
Whereas, The Internet revolution is driving today's economy and that information
technology offers increased economic opportunities, higher living standards, more individual
choices, and wider and more meaningful participation in government and public life; and
Whereas, Telecommunications in general, and the Internet in particular, are becoming
increasingly important to the efficiency and effectiveness of private and public sector entities; and
Whereas, Broadband accessibility and affordability is necessary for widespread economic
growth and sustainability but is lacking in many rural areas, which are often the last to be served
because of the high costs of infrastructure deployment and maintenance; and
Whereas, Development and implementation of rural broadband infrastructure and related
technologies also are vital to health care delivery and services, public safety, educational
opportunities and community enhancement; and
Whereas, West Virginia has seen substantial progress over the past several years in the
expansion and availability of high-speed Internet options, such as cable and DSL, across the state,
both business and residential customers in our State still lag the rest of the nation in overall use of
this new technology and its many beneficial applications; and
Whereas, New technologies such as broadband service and the benefits from these so
transcend the boundary lines of the public and private sectors that no single entity can plan for the
solution of these problems; and
Whereas, It is in the interest of this State to encourage continued wider development of
broadband Internet access to all West Virginians; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
development of a state-based strategy to establish affordable broadband Internet access for all
citizens and businesses in the state demanding it; and, be it
Further Resolved, That any study should include, at a minimum, a review of all available
broadband technologies, and inventory of, existing residential and commercial broadband service,
as well as a comprehensive inventory of the various broadband networks utilized by the State of
West Virginia and its political subdivisions, social and economic barriers of deploying broadband
technologies, development of recommended activities to generate greater facilitation and use of
broadband technologies, intergovernmental cooperation and public-private partnerships, and review
long-range broadband technology deployment and investment programs; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2006, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Petitions
Delegates Caputo, Manchin and Longstreth presented a petition, signed by eight thousand
school service personnel of the State, requesting a salary increase; which was referred to the
Committee on the Finance.
Consent Calendar
Third Reading
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:
Com. Sub. for S. B. 700, on second reading, Consent Calendar, to the House Calendar, by
Delegate Doyle.
And,
S. B. 741, on second reading, Consent Calendar, to the House Calendar, by Delegate Staton.
The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 19, Eliminating Advisory Board to Secretary of Department of Health
and Human Resources and adding Office of Inspector General,
S. B. 213, Continuing Oral Health Program,
S. B. 235, Relating to National Animal Identification System,
S. B. 240, Granting state employees paid leave for organ donation,
S. B. 281, Continuing Emergency Medical Services Advisory Council,
S. B. 347, Authorizing rules of Higher Education Policy Commission and Council for
Community and Technical College Education,
Com. Sub. for S. B. 424, Relating to conservation and preservation easements,
S. B. 531, Relating to Hospice Licensure Act,
And,
S. B. 550, Designating certain rural hospitals for Medicare Critical Access Hospital Program.
On the passage of the bills, the yeas and nays were taken (Roll No. 431), 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: Stephens.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (Com. Sub. for S. B. 19, S. B. 213, S. B. 235, S. B. 240, S. B. 281, S. B. 347, Com.
Sub. for S. B. 424, S. B. 531 and S. B. 550) passed.
An amendment to the title of S. B. 235, recommended by the Committee on the Judiciary,
was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 235 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new section, designated §19-9-7a, relating to National Animal Identification System; requiring
state participation in the program; providing rule-making authority; and exempting premises and animal identification data from disclosure pursuant to the freedom of information act.
"
An amendment to the title of Com. Sub. for S. B. 424, recommended by the Committee on
the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 424 -- "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §44-1-29, relating to the authority of personal
representatives with regard to conservation or preservation easements; and providing that a personal
representative, trustee, administrator or executor may sell, donate or amend conservation or
preservation easements under certain conditions."
Delegate Staton moved that S. B. 213 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 441), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 213) takes effect July 1, 2005.
Delegate Staton moved that S. B. 240 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 442), 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: Thompson, Ron.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 240) takes effect July 1, 2005.
Delegate Staton moved that S. B. 281 take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 443), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 281) takes effect July 1, 2005.
Delegate Staton moved that S. B. 347 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 444), and there were--yeas 100, nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 347) takes effect from its passage.
Delegate Staton moved that S. B. 550 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 445), and there were--yeas 100,
nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 550) takes effect from its passage.
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 on those requiring the same.
Second Reading
S. B. 162, Modifying time authority may allocate tax credits under Capital Company Act; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk, and
adopted, amending the bill on page two, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"ARTICLE 1. WEST VIRGINIA CAPITAL COMPANY ACT.
§5E-1-8. Tax credits.
(a) The total amount of tax credits authorized for a single qualified company may not exceed
two million dollars. The total amount of tax credits authorized for a single economic development
and technology advancement center may not exceed one million dollars. Capitalization of the
company or center may be increased pursuant to rule of the authority.
(b)(1) The total credits authorized by the authority for all companies and centers may not
exceed a total of ten million dollars each fiscal year: Provided, That for the fiscal year beginning
on the first day of July, one thousand nine hundred ninety-nine, the total credits authorized for all
companies may not exceed a total of six million dollars: Provided, however, That for the fiscal year beginning on the first day of July, two thousand, the total credits authorized for all companies may
not exceed a total of four million dollars: Provided further, That for the fiscal year beginning on the
first day of July, two thousand one, the total credits authorized for all companies may not exceed a
total of four million dollars: And provided further, That for the fiscal year beginning on the first day
of July, two thousand two, the total credits authorized for all companies may not exceed a total of
three million dollars: And provided further, That for the fiscal year beginning on the first day of
July, two thousand three, the total credits authorized for all companies may not exceed a total of
three million dollars: And provided further, That for the fiscal year beginning on the first day of
July, two thousand four, the total credits authorized for all companies may not exceed a total of one
million dollars: And provided further, That for the fiscal year beginning on the first day of July, two
thousand five, there shall be no credits authorized: And provided further, That the capital base of
any qualified company other than an economic development and technology advancement center
qualified under the provisions of article twelve-a, chapter eighteen-b of this code shall be invested
in accordance with the provisions of this article. The authority shall allocate these credits to
qualified companies and centers in the order that the companies are qualified.
(2) Not more than two million dollars of the credits allowed under subdivision (1) of this
subsection may be allocated by the authority during each fiscal year to one or more small business
investment companies described in this subdivision: Provided, That for the fiscal year beginning
on the first day of July, two thousand four, and for the fiscal year beginning on th first day of July,
two thousand five, no credits authorized by this section may be allocated by the authority to one or
more small business investment companies. After a portion of the credits are allocated to small
business investment companies as provided in this section, not more than one million dollars of the
credits allowed under subdivision (1) of this subsection may be allocated by the authority during
each fiscal year to one or more economic development and technology advancement centers qualified
by the authority under article twelve-a, chapter eighteen-b of this code: Provided, however, That for
the fiscal year beginning on the first day of July, two thousand four, all of the credits allowed under subdivision (1) of this subsection shall be allocated only to one or more qualified economic
development and technology advancement centers: Provided, however, That for the fiscal year
beginning on the first day of July, two thousand five, no credits allowed under subdivision (1) of this
subsection shall be allocated to any qualified economic development and technology advancement
center. The remainder of the tax credits allowed during the fiscal year shall be allocated by the
authority under the provisions of section four, article two of this chapter: Provided further, That for
the fiscal year beginning on the first day of July, two thousand four, and for the fiscal year beginning
on the first day of July, two thousand five, no credits authorized by this section may be allocated by
the authority to a taxpayer pursuant to the provisions of section four, article two of this chapter. The
portion of the tax credits allowed for small business investment companies described in this
subdivision shall be allowed only if allocated by the authority during the first ninety days of the fiscal
year and may only be allocated to companies that: (A) Were organized on or after the first day of
January, one thousand nine hundred ninety-nine; (B) are licensed by the small business
administration as a small business investment company under the small business investment act; and
(C) have certified in writing to the authority on the application for credits under this act that the
company will diligently seek to obtain and thereafter diligently seek to invest leverage available to
the small business investment companies under the small business investment act. These credits
shall be allocated by the authority in the order that the companies are qualified. The portion of the
tax credits allowed for economic development and technology advancement centers described in
article twelve-a, chapter eighteen-b of this code shall be similarly allowed only if allocated by the
authority during the first ninety days of the fiscal year: Provided, That solely for the fiscal year
beginning on the first day of July, two thousand four, the authority may allocate the tax credits
allowed for economic development and technology advancement centers at any time during the fiscal
year. Any credits which have not been allocated to qualified companies meeting the requirements
of this subdivision relating to small business investment companies or to qualified economic
development and technology advancement centers during the first ninety days of the fiscal year shall be made available and allocated by the authority under the provisions of section four, article two of
this chapter: And provided further Provided, That for the fiscal year beginning on the first day of
July, two thousand four, and for the fiscal year beginning on the first day of July, two thousand five,
no credits authorized by this section may be allocated by the authority to a taxpayer pursuant to the
provisions of section four, article two of this chapter.
(3) Notwithstanding any provision of this code or legislative rule promulgated thereunder to
the contrary, for the fiscal year beginning on the first day of July, two thousand four, and for the
fiscal year beginning on the first day of July, two thousand five, the authority has the sole discretion
to allocate or refuse to allocate tax credits authorized under this section to any qualified economic
development and technology advancement center upon its determination of the extent to which the
center will fulfill the purposes of this article. The determination shall be based upon the application
of the center, the extent to which the company or center fulfilled those purposes in prior years after
receiving tax credits authorized under this section, the extent to which the center is expected to
stimulate economic development and high technology research in the chemical industry and such
other similarly related criteria as the authority may establish by vote of the majority of authority.
(c) Any investor, including an individual, partnership, limited liability company, corporation
or other entity who makes a capital investment in a qualified West Virginia capital company, is
entitled to a tax credit equal to fifty percent of the investment, except as otherwise provided in this
section or in this article: Provided, That the tax credit available to investors who make a capital
investment in an economic development and technology advancement center shall be one hundred
percent of the investment. The credit allowed by this article shall be taken after all other credits
allowed by chapter eleven of this code. It shall be taken against the same taxes and in the same order
as set forth in subsections (c) through (i), inclusive, section five, article thirteen-c, chapter eleven of
this code. The credit for investments by a partnership, limited liability company, a corporation
electing to be treated as a subchapter S corporation or any other entity which is treated as a pass
through entity under federal and state income tax laws may be divided pursuant to election of the entity's partners, members, shareholders or owners.
(d) The tax credit allowed under this section is to be credited against the taxpayer's tax
liability for the taxable year in which the investment in a qualified West Virginia capital company
or economic development and technology advancement center is made. If the amount of the tax
credit exceeds the taxpayer's tax liability for the taxable year, the amount of the credit which exceeds
the tax liability for the taxable year may be carried to succeeding taxable years until used in full or
until forfeited: Provided, That: (i) Tax credits may not be carried forward beyond fifteen years; and
(ii) tax credits may not be carried back to prior taxable years. Any tax credit remaining after the
fifteenth taxable year is forfeited.
(e) The tax credit provided for in this section is available only to those taxpayers whose
investment in a qualified West Virginia capital company or economic development and technology
advancement center occurs after the first day of July, one thousand nine hundred eighty-six.
(f) The tax credit allowed under this section may not be used against any liability the taxpayer
may have for interest, penalties or additions to tax.
(g) Notwithstanding any provision in this code to the contrary, the tax commissioner shall
publish in the state register the name and address of every taxpayer and the amount, by category, of
any credit asserted under this article. The categories by dollar amount of credit received are as
follows:
(1) More than $1.00, but not more than $50,000;
(2) More than $50,000, but not more than $100,000;
(3) More than $100,000, but not more than $250,000;
(4) More than $250,000, but not more than $500,000;
(5) More than $500,000, but not more than $1,000,000; and
(6) More than $1,000,000.".
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 223, Relating to vesting retirement benefits for certain members of military
; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill
on page four, section fifteen, line fifty-seven, following the words " or
call", by striking out the period and inserting a colon and the words "Provided further, That the
credited service and death benefits may not be awarded or paid unless application therefor is filed
within one year of the end of the period of compulsory military service or armed conflict, or the
death of the member, whichever shall first occur", followed by a period.
There being no further amendments, the bill was then ordered to third reading.
S. B. 236, Requiring health care facilities train staff, employees and contractors on
Alzheimer's disease and related dementia
; on second reading, coming up in regular order, was read
a second time.
An amendment, recommended by the Committee on page two, 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 §16-5R-6, to read as follows:
"ARTICLE 5R. THE ALZHEIMER'S SPECIAL CARE STANDARDS ACT.
§16-5R-6. Alzheimer's and dementia care training; rules.
(a)For the purposes of this section, "resident" menas an individual receiving care or services
in an adult day care facility, nursing home, assisted living facility or residential care community.
(b) The Secretary shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-s of this code, setting minimum standards for
Alzheimer's and dementia care training of all staff, employees and contractors that come in regular
and direct contact with residents.
(c) The standards established in this section shall apply to adult day care facilities, nursing
homes, assisted living facilities and residential care communities who provide services under the
supervision of a licensed operator".
There being no further amendments, the bill was then ordered to third reading.
S. B. 278, Relating to lists of stockholders of banking institutions and bank holding
companies;
on second reading, coming up in regular order, was read a second time and ordered to
third reading.
S. B. 282, Continuing School Building Authority
; on second reading, coming up in regular
order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one, section eighteen, by striking-out everything
after the section heading and inserting in lieu thereof the following:
"
Pursuant to the provisions of article ten, chapter four of this code, the School Building
Authority shall continue to exist until the first day of July, two thousand seven, unless sooner
terminated, continued or reestablished."
There being no further amendments, the bill was then ordered to third reading.
S. B. 285, Continuing Division of Culture and History
; on second reading, coming up in
regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one, section one b, by striking-out everything
after the section heading and inserting in lieu thereof the following:
"Pursuant to the provisions of article ten, chapter four of this code, the Division of Culture
and History shall continue to exist until the first day of July, two thousand seven, unless sooner
terminated, continued or reestablished.
"
There being no further amendments, the bill was then ordered to third reading.
S. B. 286, Continuing Public Defender Services; on second reading, coming up in regular
order, was read a second time.
An amendment, recommended by the Clerk and adopted, amending the bill on page one,
section three a, by striking-out everything after the section heading and inserting in lieu thereof the following:
"Pursuant to the provisions of article ten, chapter four of this code, Public Defender Services
shall continue to exist until the first day of July, two thousand eight, unless sooner terminated,
continued or reestablished."
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 341, Authorizing Department of Health and Human Resources
promulgate legislative ruleson second reading, coming up in regular order, was read a second time
and ordered to third reading.
Com. Sub. For S. B. 353, Authorizing Department of Transportation promulgate legislative
rules; on second reading, coming up in regular order, was read a second time and ordered to third
reading.
Com. Sub. for S. B. 357, Authorizing Department of Revenue promulgate legislative rules;
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 eleven, section four, line thirty-five, by striking out the word
"August" and the semicolon, and inserting in lieu thereof the word "September" and a period, and
by striking out the remainder of the section.
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 382, Authorizing Department of Administration promulgate legislature
rules; on second reading, coming up in regular order, was rad a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"That §64-1-1 of the code of West Virginia, 1931, as amended, be amended and reenacted;
and that article 2, chapter 64 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a of the code of West Virginia, the
Legislature expressly authorizes the promulgation of the rules described in articles two through
eleven, inclusive, of this chapter, subject only to the limitations set forth with respect to each such
rule in the section or sections of this chapter authorizing its promulgation. Legislative rules
promulgated pursuant to the provisions of articles one through eleven, inclusive, of this chapter in
effect at the effective date of this section shall continue in full force and effect until reauthorized in
this chapter by legislative enactment or until amended by emergency rule pursuant to the provisions
of article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO
PROMULGATE LEGISLATIVE RULES.
§64-2-1. Department of Administration.
(a) The legislative rule filed in the State Register on the twenty-seventh day of August, two
thousand four, under the authority of section forty-two, article three, chapter five-a of this code
modified by the Department of Administration to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the sixteenth day of November, two thousand
four, relating to the Department of Administration (leasing space on behalf of state spending units,
148 CSR 2) is authorized, with the following amendment:
On page seven, by striking out all of subsection 12.6.
(b) The legislative rule filed in the State Register on the twenty-seventh day of August, two
thousand four, under the authority of section forty-eight, article three, chapter five-a of this code
relating to the Department of Administration (state owned vehicles, 148 CSR 3) is authorized.
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of November, two
thousand four, relating to the Consolidated Public Retirement Board (general provisions, 162 CSR
1) is authorized, with the following amendment:
On page three, subdivision 6.2.1., lines sixteen and seventeen, by striking out the words
"Accrued Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement
benefit";
On page three, paragraph 6.2.1.1., by striking out the paragraph in its entirety and inserting
in lieu thereof the following:
6.2.1.1. "Vested accrued retirement benefit' means the benefit due to the member as of the
date specified by the parties in the Qualified Domestic Relations Order set out in subdivision 6.2.2.
of this rule.;
On page three, subdivision 6.2.3., line nine, by striking out the words "Accrued Retirement
Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
On page three, subdivision 6.2.4., line nine, by striking out the words "Accrued Retirement
Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
On page four, paragraph 6.2.5.3., lines three and four, by striking out the words "Accrued
Retirement Benefit" and inserting in lieu thereof the words "vested accrued retirement benefit";
And,
On page four, subdivision 6.2.8., line six, by striking out the words "Moreover, no qualified
domestic relations order will be honored by the board while a loan under the above two sections is
outstanding" and inserting in lieu thereof the words "Provided, That, a member may borrow from
that portion of his or her individual account not subject to the qualified domestic relations order.".
(b) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the seventeenth day of November, two thousand four, relating to the Consolidated Public Retirement Board (deputy sheriff retirement
system, 162 CSR 10) is authorized, with the following amendment:
On page six, by striking out section fourteen in its entirety, and redesignating the remaining
sections and their components accordingly.
(c) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the seventeenth day of November, two
thousand four, relating to the Consolidated Public Retirement Board (benefit determination and
appeal, 162 CSR 2) is authorized.
(d) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the seventeenth day of November, two
thousand four, relating to the Consolidated Public Retirement Board (teachers' defined contribution
system, 162 CSR 3) is authorized, with the following amendment:
On page one, subsection 3.1, line four, after the words "different meaning" by inserting a new
subdivision to read as follows: "3.1.1. 'Accrued benefit' is the amount credited to the member's
annuity account.", and by redesignating the remaining subdivisions accordingly;
On page three, subsection 4.1, line thirteen, following the words "fifteen (15) days of the end
of the pay period.", by striking out the remainder of the subsection;
On page three, subsection 4.2, twenty-one, following the words "fifteen (15) days of the end
of the pay period.", by striking out the remainder of the subsection;
And,
On page eight, subsection 7.5, line fourteen, after the words "default fund for distribution to
the member", by inserting the words "or beneficiary".
(e) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the seventeenth day of November, two
thousand four, relating to the Consolidated Public Retirement Board (teachers' defined benefit plan,
162 CSR 4) is authorized, with the following amendment:
On page seven, by striking out section 10 in its entirety.
(f) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code modified by
the Consolidated Public Retirement Board to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the seventeenth day of November, two
thousand four, relating to the Consolidated Public Retirement Board (public employees retirement
system, 162 CSR 5) is authorized with the following amendment:
On page three, by striking out section 10 in its entirety and redesignating the remaining
sections and their components accordingly.
(g) The legislative rule filed in the State Register on the twenty-fourth day of August, two
thousand four, under the authority of section one, article ten-d, chapter five of this code relating to
the Consolidated Public Retirement Board (West Virginia State Police disability determination and
appeal process, 162 CSR 9) is authorized.
§64-2-3. West Virginia Ethics Commission.
The legislative rule filed in the State Register on the twenty-sixth day of August, two
thousand four, under the authority of section five-a, article two, chapter six-b of this code modified
by the Ethics Commission to meet the objections of the Legislative Rule-Making Review Committee
and refiled in the State Register on the sixteenth day of February, two thousand five, relating to the
Ethics Commission (code of conduct for administrative law judges, 158 CSR 13) is authorized, with
the following amendment:
On pages eleven and twelve, by striking out paragraph 4.7.a.2. in its entirety and inserting
in lieu thereof the following:
"4.7.a.2. Personally solicit funds for a political organization or political candidate; Provided,
That, the provisions of this paragraph do not apply to part-time state administrative law judges.
4.7.a.3. Be compelled to pay an assessment to a political organization or candidate or
purchase tickets for political dinners or other similar functions.".
§64-2-4. Division of Information Service and Communications.
The legislative rule filed in the State Register on the twenty-seventh day of August, two
thousand four, under the authority of section four-a, article seven, chapter five-a of this code modified
by the Division of Information Services and Communications to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on the thirteenth day of January,
two thousand five, relating to the Division of Information Services and Communications
(telecommunications payments by spending units, 161 CSR 2) is authorized, with the following
amendment:
On page one, section 2, subsection (g.), after the word "IS&C", by inserting the words "or 'the
Division'";
On page two, section 2, subsection "(k.) 'Shared Account'", after the words "in §5A-7-4a",
by striking "(l)" and inserting in lieu thereof "(k)";
On page two, section 2, by striking all of subsection (l.) and inserting in lieu thereof the
following:
"2.l5. 'Spending Unit' means a department, agency or institution of the state government for
which an appropriation is requested, or to which an appropriation is made by the Legislature:
Provided, That spending unit does not include the Legislature or the judiciary.";
On page three, section 3, following the words "spending units", by striking out the remainder
of the section and inserting in lieu thereof "that have their telecommunications services billed on the
state's shared account.";
On page three, section 4, subsection(b.), line 12, by striking out the words "to ensure the
legitimacy of the charges.";
On page three, section 4, by striking out subdivision (g.) in its entirety and relettering the
remaining subdivision;
On page three, section 5, by striking out the words "IS&C will insure all of its duties and
rights are executed as defined below after the first billing period. This allows IS&C to implement the
new policies and allow for transition by all parties (vendors, spending units, etc.)";
On page three, by striking out subdivisions 5.1.2. and 5.1.3. in their entirety and renumbering
the remaining subdivision;
On page four, section 5.1.4., following the word "Charges" by striking out the words "not
rejected during this preliminary review by IS&C";
On page five, section 6, by striking out the words "Any spending unit that is utilizing the
services and pricing of a telecommunications provider via a state-issued contract must agree to have
its charges included in the shared account and all requests for telecommunications services must be
obtained by submitting to IS&C a Telecommunications Change Request form for approval.";
On page eight, section 8, line 3, after the word "via" by striking out the words "a state-issued
contract" and inserting in lieu thereof the words "via a shared account";
On page eight, by striking out subsection 8.1 in its entirety;
And,
On page eight, section 8, by striking out the words "8.2 Invoices submitted for payment.
8.2.1. Vendors are required to submit all invoices to IS&C that include more than one
spending unit. If vendors are providing services to spending units governed by the pricing included
in the applicable state-issued contract then the charges for these services must be included on the
shared account.".
§64-2-5. Division of Personnel.
(a) The legislative rule filed in the State Register on the twenty-seventh day of August, two thousand four, under the authority of section ten, article six, chapter twenty-nine of this code modified
by the Division of Personnel to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the State Register on the twenty-third day of November, two thousand four,
relating to the Division of Personnel (Administration, 143 CSR 1) is authorized.
(b) The legislative rule filed in the State Register on the twenty-seventh day of August, two
thousand four, under the authority of section ten, article six, chapter twenty-nine of this code modified
by the Division of Personnel to meet the objections of the Legislative Rule-Making Review
Committee and refiled in the State Register on the twentieth day of January, two thousand five,
relating to the Division of Personnel (preemployment reference and inquiries, 143 CSR 4) is
authorized, with the following amendment:
On page one, subsection 1.1., by striking out the word 'eligibility' and inserting in lieu thereof
the word 'rejection';
On page one, subsection 2.1., line one, after the word 'employment' by striking out the word
'with' and inserting in lieu thereof the words 'in the classified service of';
On page one, subsection 2.1., line two, by striking out the semi-colon and inserting a comma,
and by striking out the word 'includes' and inserting in lieu thereof the word 'including';
On page one, subsection 2.2., line two, after the word 'service.', by striking out the remainder
of the subsection;
On page one, by striking out subsection 2.6. in its entirety and inserting in lieu thereof the
following:
'2.5. Disqualifying event: Conviction of a crime of an infamous crime or other crime
involving moral turpitude which has a reasonable connection to the position/class for which the
applicant or employee is applying. For purposes of this rule, a plea of "guilty" or "no contest" is
considered a conviction unless the charge was subsequently invalidated by a court decision.';
On page one, subsection 2.5., by striking out the entire subsection and inserting in lieu thereof
the following:
'2.6. Director: The Director of the Division of Personnel or his or her designee.';
On page two, subsection 2.11., by striking out the words 'actions by the individual that would
cause', and, after the word 'damage', by inserting the words 'or injury';
On page two, subsection 2.12., line one, after the word 'to' by inserting the words 'a classified
service position in';
On page two, by striking out section 3 in its entirety and renumbering the succeeding sections
accordingly;
On page two, section 4, by striking out the words 'the Director shall prescribe information
required to be submitted by applicants, including fingerprints and driver's license number, that is
needed by the State Police and other entities for processing or as is otherwise necessary to facilitate
access to information.';
On pages two and three, by striking out the subsections 4.1. and 4.2. in their entirety, and
inserting in lieu thereof the following:
'4.1. To establish the eligibility of an applicant or employee, the Director may verify
information provided by the applicant, including, but not limited to:
a. Current and previous employment and/or volunteer and/or student activities;
b. Military service;
c. Formal education; and
d. Professional licensure and/or certification.
4.2. To the extent permitted by law and reasonably relevant to established eligibility standards
or the nature of the position sought by the applicant, the Director may obtain and review:
a. The applicant's state and/or federal criminal records history;
b. The central abuse registry established pursuant to W. Va. Code § 15-2C-1 et seq.; and
c. The applicant's driving records.
4.3. To the extent permitted by law, the Director may require an applicant to provide any
information necessary to afford the Director access to records reasonably relevant to established eligibility standards or the nature of the position sought by the applicant.
4.4. The Director shall conduct investigations and/or secure reports necessary to assess the
suitability of an applicant. The Director may delegate some or all of the responsibility to qualified
appointing authorities in accordance with the provisions of this rule.'
On page three, subsection 4.3, by renumbering the subsection as subsection '4.5.';
On page three, section 5, by striking out the entire section and renumbering the succeeding
sections accordingly;
On page four, subsection 7.1., after the words 'separate file', by striking out the remainder of
the subsection;
On page four, subsection 7.2., after the word 'all', by striking out the words 'required and
requested' and, after the word 'reports', by inserting the words 'requested by the Division of
Personnel pursuant to this rule;
On page four, subsection 8.1., line one, by striking out the words 'shall be' and inserting in
lieu thereof the word 'is';
On page four, subsection 8.1, lines three and four, after the word 'report', by striking out the
word 'the' and inserting in lieu thereof the word 'a', and by striking out the word 'limit' and inserting
in lieu thereof the word 'provided';
On page four, subsection 8.2., by striking out the words 'that is needed' and inserting in lieu
thereof the word 'required', and by striking out the words 'as is otherwise necessary';
On page four, subsection 9.1., line two, after the words 'employee to a' by inserting the words
'classified service';
And,
On page four, by striking out section 10 in its entirety.
§64-2-6. Board of Risk and Insurance Management.
(a) The legislative rule filed in the State Register on the twenty-sixth day of August, two
thousand four, under the authority of section five, article twelve, chapter twenty-nine of this code modified by the Board of Risk and Insurance Management to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on the twentieth day of January,
two thousand five, relating to the Board of Risk and Insurance Management (public entities insurance
program, 115 CSR 2) is authorized.
(b) The legislative rule filed in the State Register on the twenty-sixth day of August, two
thousand four, under the authority of section five, article twelve, chapter twenty-nine of this code
modified by the Board of Risk and Insurance Management to meet the objections of the Legislative
Rule-Making Review Committee and refiled in the State Register on the sixteenth day of February,
two thousand five, relating to the Board of Risk and Insurance Management (patient injury
compensation fund, 115 CSR 7) is authorized.
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 386, Authorizing Department of Military Affairs and Public Safety
promulgate legislative rules;
on second reading, coming up in regular order, was read a second time
and ordered to third reading.
S. B. 427, Relating to health maintenance organizations;
on second reading, coming up in
regular order, was, at the request of Delegate Staton, and by unanimous consent, postponed until the
completion of items remaining on second reading.
S. B. 452, Continuing Board of Risk and Insurance Management; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page two, section twelve, by striking-out everything
after the section heading and inserting in lieu thereof the following:
"
Pursuant to the provisions of article ten, chapter four of this code, the state Board of Risk and
Insurance Management shall continue to exist until the first day of July, two thousand six, unless
sooner terminated, continued or reestablished."
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 455, Relating to financing of environmental control activities by certain
electrical utilities; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-4e. Environmental control bonds.
(a) Legislative findings. -- The Legislature hereby finds and declares: (i) That electric utilities
in the state face the need to install and construct emission control equipment at existing generating
facilities in the state in order to meet the requirements of existing and anticipated environmental laws
and regulations and otherwise to reduce emissions from those electric generating facilities; (ii) that
the capital costs associated with the installation and construction of emission control equipment are
considerable; (iii) that the financial condition of some electric utilities may make the use of traditional
utility financing mechanisms to finance the construction and installation of emission control
equipment difficult or impossible and that this situation may cause such utilities to defer the
installation of emission control equipment, to incur higher financing costs, to minimize or eliminate
their use of high-sulfur coal mined in the State or to use other financing alternatives that are less
favorable to the state and its citizens; (iv) that the construction and installation of emission control
equipment by utilities will create public health and economic benefits to the state and its citizens,
including, without limitation, emissions reductions, economic development, job growth and retention,
and the increased use of high-sulfur coal mined in the State; (v) that customers of electric utilities in
the state have an interest in the construction and installation of emission control equipment at electric
generating facilities in the state at a lower cost than would be afforded by traditional utility financing
mechanisms; (vi) that alternative financing mechanisms exist which can result in lower costs to
customers and the use of these mechanisms can ensure that only those costs associated with the construction and installation of emission control equipment at electric generating facilities located
in the state that generate electric energy for their ultimate use will be included in customer rates; and
(vii) that in order to use such alternative financing mechanisms, the Commission must be empowered
to adopt a financing order that advances these goals. The Legislature, therefore, finds that it is in the
interest of the state and its citizens to encourage and facilitate the use of alternative financing
mechanisms that will enable certain utilities to finance the construction and installation of emission
control equipment at electric generating facilities in the state under certain conditions and to empower
the Commission to review and approve alternative financing mechanisms as being consistent with
the public interest, as set forth in this section.
(b) Definitions. --
As used in this section:
(1) "Adjustment mechanism" means a formula-based mechanism for making any adjustments
to the amount of the environmental control charges that are necessary to correct for any
over-collection or under-collection of the environmental control charges or otherwise to ensure the
timely and complete payment and recovery of environmental control costs and financing costs. The
adjustment mechanism is not to be used as a means to authorize the issuance of environmental control
bonds in a principal amount greater, or the payment or recovery of environmental control costs in an
amount greater, than that which was authorized in the financing order which established the
adjustment mechanism.
(2) "Ancillary agreement" means any bond insurance policy, letter of credit, reserve account,
surety bond, swap arrangement, hedging arrangement, liquidity or credit support arrangement, or
other similar agreement or arrangement entered into in connection with the issuance of environmental
control bonds that is designed to promote the credit quality and marketability of the bonds or to
mitigate the risk of an increase in interest rates.
(3) "Assignee" means any person or legal entity to which an interest in environmental control
property is sold, assigned, transferred or conveyed (other than as security) and any successor to or subsequent assignee of such a person or legal entity.
(4) "Bondholder" means any holder or owner of an environmental control bond.
(5) "Environmental control activity" means any of the following:
(A) The construction, installation and placing in operation of environmental control equipment
at a qualifying generating facility.
(B) The shutdown or retirement of any existing plant, facility, unit or other property at a
qualifying generating facility to reduce, control or eliminate environmental emissions. (6)
"Environmental control bonds" means bonds, debentures, notes, certificates of participation,
certificates of beneficial interest, certificates of ownership or other evidences of indebtedness or
ownership that are issued by a qualifying utility or an assignee, the proceeds of which are used
directly or indirectly to recover, finance, or refinance environmental control costs and financing costs,
and that are secured by or payable from environmental control revenues.
(7) "Environmental control charge" means a nonbypassable charge paid by a customer of a
qualifying utility for the recovery of environmental control costs and financing costs.
(8) "Environmental control cost" means any cost, including capitalized cost relating to
regulatory assets and capitalized cost associated with design and engineering work, incurred or
expected to be incurred by a qualifying utility in undertaking an environmental control activity and,
with respect to an environmental control activity, includes the unrecovered value of property that is
retired, together with any demolition or similar cost that exceeds the salvage value of the property.
"Environmental control cost" includes preliminary expenses and investments associated with
environmental control activity that are incurred prior to the issuance of a financing order and that are
to be reimbursed from the proceeds of environmental control bonds. "Environmental control cost"
does not include any monetary penalty, fine or forfeiture assessed against a qualifying utility by a
government agency or court under a federal or state environmental statute, rule or regulation.
(9) "Environmental control equipment" means any device, equipment, structure, process,
facility or technology that is designed for the primary purpose of preventing, reducing or remediating environmental emissions and that has been or is to be constructed or installed at a qualifying
generating facility.
(10) "Environmental control property" means all of the following:
(A) The rights and interests of a qualifying utility or an assignee under a financing order,
including the right to impose, charge, collect and receive environmental control charges in the amount
necessary to provide for the full payment and recovery of all environmental control costs and
financing costs determined to be recoverable in the financing order and to obtain adjustments to the
charges as provided in this section and any interest in the rights and interests.
(B) All revenues, receipts, collections, rights to payment, payments, moneys, claims or other
proceeds arising from the rights and interests specified in paragraph (A) of this subdivision.
(11) "Environmental control revenues" means all revenues, receipts, collections, payments,
moneys, claims or other proceeds arising from environmental control property.
(12) "Environmental emissions" means the discharge or release of emissions from electric
generating facilities into the air, land or waters of the state.
(13) "Equity ratio" means, as of any given time of determination, the common equity of a
qualifying utility as calculated pursuant to the uniform system of accounts required to be used in the
filings of the qualifying utility with the federal Energy Regulatory Commission. "Equity ratio" shall
be calculated excluding the effect of the issuance of environmental control bonds or the write down
of discontinued operations.
(14) "Financing cost" means the costs to issue, service, repay, or refinance environmental
control bonds, whether incurred or paid upon issuance of the bonds or over the life of the bonds, and
approved for recovery by the Commission in a financing order. "Financing cost" may include any of
the following:
(A) Principal, interest, and redemption premiums that are payable on environmental control
bonds.
(B) Any payment required under an ancillary agreement and any amount required to fund or replenish a reserve account or other account established under any indenture, ancillary agreement or
other financing document relating to the environmental control bonds.
(C) The cost of retiring or refunding any existing debt and equity securities of a qualifying
utility in connection with the issuance of environmental control bonds, but only to the extent the
securities were issued for the purpose of financing environmental control costs.
(D) Any costs incurred by or on behalf of or allocated to a qualifying utility to obtain
modifications of or amendments to any indenture, financing agreement, security agreement or similar
agreement or instrument relating to any existing secured or unsecured obligation of a qualifying utility
or an affiliate of a qualifying utility, or any costs incurred by or allocated to a qualifying utility to
obtain any consent, release, waiver or approval from any holder of such an obligation, that are
necessary to be incurred to permit a qualifying utility to issue or cause the issuance of environmental
control bonds.
(E) Any taxes, franchise fees or license fees imposed on environmental control revenues.
(F) Any cost related to issuing and servicing environmental control bonds or the application
for a financing order, including, without limitation, servicing fees and expenses, trustee fees and
expenses, legal fees and expenses, administrative fees, placement fees, capitalized interest, rating
agency fees and any other related cost that is approved for recovery in the financing order.
(15) "Financing order" means an order of the Commission pursuant to subsection (d) of this
section that grants, in whole or in part, an application filed pursuant to subsection (c) of this section
and that authorizes the construction and installation of environmental control equipment, the issuance
of environmental control bonds in one or more series, the imposition, charging and collection of
environmental control charges, and the creation of environmental control property. A financing order
may set forth conditions or contingencies on the effectiveness of the relief authorized therein and may
grant relief that is different from that which was requested in the application.
(16) "Financing parties" means:
(A) Any trustee, collateral agent or other person acting for the benefit of any bondholder.
(B) Any party to an ancillary agreement the rights and obligations of which relate to or depend
upon the existence of environmental control property, the enforcement and priority of a security
interest in environmental control property, the timely collection and payment of environmental control
revenues or a combination of these factors.
(17) "Financing statement" means a financing statement as defined in subdivision (39),
subsection (a), section one hundred two, article nine, chapter forty-six of this code.
(18) "Investment grade" means, with respect to the unsecured debt obligations of a qualifying
utility at any given time of determination, a rating that is within the top four investment rating
categories as published by at least one nationally-recognized statistical rating organization as
recognized by the United States Securities and Exchange Commission.
(19) "Nonbypassable" means that the payment of an environmental control charge may not
be avoided by any electric service customer located within a utility service area, and must be paid by
any such customer that receives electric delivery service from the qualifying utility for as long as the
environmental control bonds are outstanding.
(20) "Nonutility affiliate" means, with respect to any qualifying utility, a person that: (i) Is
an affiliate of the qualifying utility as defined in 15 U. S. C. §79b(a)(11); and (ii) is not a public utility
that provides retail utility service to customers in the state within the meaning of section two, article
one of this chapter.
(21) "Parent" means, with respect to any qualifying utility, any registered holding company
or other person that holds a majority ownership or membership interest in the qualifying utility.
(22) "Qualifying generating facility" means any electric generating facility that: (i) Has
generated electric energy for ultimate sale to customers in the state before the effective date of this
section; and (ii) is owned by a qualifying utility or, on the expected date of issuance of the
environmental control bonds authorized in a financing order, will be owned by a qualifying utility.
(23) "Qualifying utility" means:
(A) Any public utility that is: (i) Engaged in the delivery of electric energy to customers in this state; and (ii) at any time between the date which is two years immediately preceding the effective
date of this section and the date on which an application for a financing order is made, has or had a
credit rating on its unsecured debt obligations that is below investment grade.
(B) For so long as environmental control bonds issued pursuant to a financing order are
outstanding and the related environmental control costs and financing costs have not been paid in full,
the public utility to which the financing order was issued and its successors.
(24) "Registered holding company" means, with respect to a qualifying utility, a person that
is: (i) A registered holding company as defined in 15 U. S. C. §79b(a)(12); and (ii) an affiliate of the
qualifying utility as defined in 15 U. S. C. §79b(a)(11).
(25) "Regulatory sanctions" means, under the circumstances presented, any regulatory or
ratemaking sanction or penalty that the Commission is authorized to impose pursuant to this chapter
or any proceeding for the enforcement of any provision of this chapter or any order of the
Commission that the Commission is authorized to pursue or conduct pursuant to this chapter,
including without limitation: (i) The initiation of any proceeding in which the qualifying utility is
required to show cause why it should not be required to comply with the terms and conditions of a
financing order or the requirements of this section; (ii) the imposition of civil penalties pursuant to
section three, article four of this chapter and the imposition of criminal penalties pursuant to section
four of said article, in either case with reference to the provisions of section eight of said article; and
(iii) a proceeding by mandamus or injunction as provided in section two of this article.
(26) "Successor" means, with respect to any legal entity, another legal entity that succeeds by
operation of law to the rights and obligations of the first legal entity pursuant to any bankruptcy,
reorganization, restructuring or other insolvency proceeding, any merger, acquisition, or
consolidation, or any sale or transfer of assets, whether any of these occur as a result of a restructuring
of the electric power industry or otherwise.
(27) "Utility service area" means: (i) The geographic area of the state in which a qualifying
utility provides electric delivery service to customers at the time of issuance of a financing order; and (ii) for as long as environmental control bonds issued pursuant to a financing order are outstanding,
any additions to or enlargements of said geographic area, whether or not approved by the Commission
in a formal proceeding.
(c) Application for financing order. --
(1) A qualifying utility, or two or more affiliated qualifying utilities, may apply to the
Commission for a financing order under this section.
(2) An application for a financing order under this section shall be filed only as provided in
this subdivision.
(A) An application for a financing order under this section shall be filed as part of the
application of the qualifying utility or qualifying utilities under section eleven of this article for a
certificate of public convenience and necessity to engage in environmental control activities.
(B) If a qualifying utility or qualifying utilities have an application for a certificate of public
convenience and necessity to engage in environmental control activities pending before the
Commission on the effective date of this section, the qualifying utility or qualifying utilities may file
a separate application for a financing order and the Commission shall join or consolidate the
application for a financing order with the pending application for a certificate of public convenience
and necessity. Notwithstanding any provision of section eleven of this article to the contrary or the
total project cost of the proposed environmental control activities, the Commission shall render its
final decision on any joined or consolidated proceeding for a certificate of public convenience and
necessity and a financing order as described in this paragraph within two hundred seventy days of the
filing of the application for the financing order and within ninety days after final submission of the
joined or consolidated application for decision following a hearing.
(3) In addition to any other information required by the Commission, an application for a
financing order shall include the following information:
(A) Evidence that the applicant is a qualifying utility;
(B) A description of the environmental control activities that the qualifying utility proposes to undertake, including a detailed description of the environmental control equipment to be
constructed or installed at one or more qualifying generation facilities;
(C) An explanation why the environmental control activities described in the application are
necessary in the context of the qualifying utility's operations, current and anticipated environmental
regulations, the prospect of enforcement proceedings or litigation against the qualifying utility if the
environmental control activities are not undertaken and the utility's long-range environmental
compliance plans;
(D) A description of any alternatives to the environmental control activities described in the
application that the qualifying utility considered and an explanation of why each alternative either is
not feasible or was not selected;
(E) An estimate of the environmental control costs associated with the environmental control
activities described in the application, including the estimated cost of the environmental control
equipment proposed to be installed;
(F) An estimated schedule for the construction or installation of the environmental control
equipment;
(G) An estimate of the date on which the environmental control bonds are expected to be
issued and the expected term over which the financing costs associated with the issuance are expected
to be recovered, or if the bonds are expected to be issued in more than one series, the estimated
issuance date and expected term for each bond issuance;
(H) The portion of the environmental control costs the qualifying utility proposes to finance
through the issuance of one or more series of environmental control bonds;
(I) An estimate of the financing costs associated with each series of environmental control
bonds proposed to be issued;
(J) An estimate of the amount of the environmental control charges necessary to recover the
environmental control costs and financing costs estimated in the application and the proposed
calculation thereof, which estimate and calculation should take into account the estimated date of issuance and estimated principal amount of each series of environmental control bonds proposed to
be issued;
(K) A proposed methodology for allocating financing costs among customer classes;
(L) A description of the proposed adjustment mechanism; and
(M) A description of the benefits to the customers of the qualifying utility and the state that
are expected to result from the financing of the environmental control costs with environmental
control bonds as opposed to the use of traditional utility financing mechanisms.
(4) An application for a financing order may restate or incorporate by reference any
information required pursuant to subdivision (3) of this subsection that the qualifying utility
previously filed with the Commission in connection with an application for a certificate of public
convenience and necessity under section eleven of this article as described in paragraph (B),
subdivision (2) of this subsection.
(d) Issuance of financing order. --
(1) Notice of an application for a financing order shall be given as a Class I legal
advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, with
the publication area being each county in which the environmental control activities are to be
undertaken and each county in the state in which the qualifying utility provides service to customers.
If no substantial protest is received within thirty days after the publication of notice, the Commission
may waive formal hearing on the application.
(2) The Commission shall issue a financing order, or an order rejecting the application for a
financing order, as part of its final order on the application of the qualifying utility or qualifying
utilities for a certificate of public convenience and necessity to engage in environmental control
activities as described in subdivision (2), subsection (c) of this section.
(3) The Commission shall issue a financing order if the Commission finds all of the following:
(A) That the applicant is a qualifying utility;
(B) That the environmental control activities, including the environmental control equipment to be constructed or installed at one or more qualifying generation facilities, are necessary and prudent
under the circumstances and are preferable to any alternatives available to the qualifying utility;
(C) That the cost of the environmental control activities, including the environmental control
equipment to be constructed or installed at one or more qualifying generation facilities, is reasonable;
(D) That the proposed issuance of environmental control bonds will result in overall costs to
customers of the qualifying utility that: (1) Are lower than would result from the use of traditional
utility financing mechanisms; and (2) are just and reasonable;
(E) That the financing of the environmental control costs with environmental control bonds
will result in benefits to the customers of the qualifying utility and the state; and
(F) That the proposed issuance of environmental control bonds, together with the imposition
and collection of the environmental control charges on customers of the qualifying utility, are just and
reasonable and are otherwise consistent with the public interest and constitute a prudent, reasonable
and appropriate mechanism for the financing of the environmental control activities described in the
application.
(4) The Commission shall include the following findings and requirements in a financing
order:
(A) A determination of the maximum amount of environmental control costs that may be
financed from proceeds of environmental control bonds authorized to be issued in the financing order;
(B) A description of the financing costs that may be recovered through environmental control
charges and the period over which the costs may be recovered, subject to the application of the
adjustment mechanism as provided in subsection (e) of this section. As part of this description, the
Commission may include qualitative or quantitative limitations on the financing costs authorized in
the financing order;
(C) A description of the adjustment mechanism and a finding that it is just and reasonable;
and
(D) A description of the environmental control property that is created and that may be used to pay, and secure the payment of, the environmental control bonds and financing costs authorized
to be issued in the financing order.
(5) A financing order may provide that the creation of environmental control property shall
be simultaneous with the sale of the environmental control property to an assignee as provided in the
application and the pledge of the environmental control property to secure environmental control
bonds.
(6) A financing order may authorize the qualifying utility to conduct environmental control
activities, including the construction or installation of environmental control equipment, on an
estimated schedule approved in the financing order and through the issuance of more than one series
of environmental control bonds. In this case, the qualifying utility will not subsequently be required
to secure a separate financing order for each issuance of environmental control bonds or for each
scheduled phase of the construction or installation of environmental control equipment approved in
the financing order.
(7) The Commission may require, as a condition to the effectiveness of the financing order
but in every circumstance subject to the limitations set forth in subdivision (1), subsection (f) of this
section, that the qualifying utility give appropriate assurances to the Commission that the qualifying
utility and its parent will abide by the following conditions during any period in which any
environmental control bonds issued pursuant to the financing order are outstanding, in addition to any
other obligation either may have under this code or federal law:
(A) Without first obtaining the prior consent and approval of the Commission, the qualifying
utility will not:
(1) Lend money, directly or indirectly, to a registered holding company or a nonutility affiliate;
or
(2) Guarantee the obligations of a registered holding company or a nonutility affiliate.
(B) If: (i) For a period of twelve consecutive months immediately preceding the date of
determination, the qualifying utility has had an equity ratio of below thirty percent and neither the qualifying utility nor its parent has had a credit rating on its unsecured debt obligations that is
investment grade; and (ii) the Commission determines that the present ability of the qualifying utility
to meet its public service obligations would be impaired by the payment of dividends, the
Commission may order the qualifying utility to limit or cease the payment of dividends for a period
not exceeding one hundred eighty days from the date of determination, which order may be extended
for one or more additional periods not to exceed one hundred eighty days each if the Commission
determines that the conditions set forth in this paragraph continue to exist as of the date of each such
determination.
(C) Neither the parent nor a nonutility affiliate will direct or require the qualifying utility to
file a voluntary petition in bankruptcy: Provided, That nothing in this paragraph shall preclude the
qualifying utility from filing a voluntary petition in bankruptcy if in the determination of the board
of directors of the qualifying utility in the exercise of its fiduciary duty, the filing of its own voluntary
petition in bankruptcy would be proper under applicable federal statutory and common law.
(8) A financing order may require the qualifying utility to file with the Commission a periodic
report showing the receipt and disbursement of proceeds of environmental control bonds. A financing
order may authorize the staff of the Commission to review and audit the books and records of the
qualifying utility relating to the receipt and disbursement of proceeds of environmental control bonds.
The provisions of this subdivision shall not be construed to limit the authority of the Commission
under this chapter to investigate the practices of the qualifying utility or to audit the books and records
of the qualifying utility.
(9) In the case of two or more affiliated qualifying utilities that have jointly applied for a
financing order as provided in subdivision (1), subsection (c) of this section, a financing order may
authorize each affiliated qualifying utility:
(A) to impose environmental control charges on its customers, notwithstanding the fact that
the qualifying generating facility at which the environmental control activities are to be conducted
is owned, or on the expected date of issuance of the environmental control bonds authorized in the financing order will be owned, by fewer than all of the affiliated qualifying utilities; and
(B) To issue environmental control bonds and to receive and use the proceeds thereof as
provided in subdivision (1), subsection (j) of this section, notwithstanding the fact that all or a portion
of the proceeds are expected to be used for environmental control activities to be conducted at a
qualifying generating facility the ownership of which is as specified in paragraph (A) of this
subdivision.
(e) Application of adjustment mechanism. --
(1) If the Commission issues a financing order, the Commission shall periodically approve
the application of the adjustment mechanism specified in the financing order to correct for any
over-collection or under-collection of the environmental control charges and to provide for timely
payment of scheduled principal of and interest on the environmental control bonds and the payment
and recovery of other financing costs in accordance with the financing order. Application of the
adjustment mechanism shall occur at least annually or more frequently as provided in the financing
order.
(2) On the same day the qualifying utility files with the Commission its calculation of the
adjustment, it shall cause notice of the filing to be given, in the form specified in the financing order,
as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine
of this code in a newspaper of statewide circulation published each weekday in Kanawha County:
Provided, That this publication shall be made only if the calculation of the adjustment filed by the
qualifying utility with the Commission would result in an increase in the amount of the environmental
control charge.
(3) The Commission shall allow interested parties thirty days from the date the qualifying
utility filed the calculation of the adjustment within which to make comments, which shall be limited
to the mathematical accuracy of the calculation and of the amount of the adjustment. If the
Commission determines that a hearing is necessary, the Commission shall hold a hearing on the
comments within forty days of the date the qualifying utility filed the calculation of the adjustment.
(4) Each adjustment to the environmental control charge, in an amount as calculated by the
qualifying utility but incorporating any correction for mathematical inaccuracy as determined by the
Commission at or after the hearing, shall automatically become effective: (i) Sixty days following
the date on which the qualifying utility files with the Commission its calculation of the adjustment;
or (ii) on any earlier date specified in an order of the Commission approving the application of the
adjustment.
(5) No adjustment pursuant to this subsection, and no proceeding held pursuant to this
subsection, shall in any way affect the irrevocability of the financing order as specified in subsection
(f) of this section.
(f) Irrevocability of financing order. --
(1) A financing order is irrevocable and the Commission may not reduce, impair, postpone
or terminate the environmental control charges approved in the financing order or impair the
environmental control property or the collection or recovery of environmental control revenues.
(2) A financing order may be subsequently amended on or after the date of issuance of
environmental control bonds authorized thereunder only: (A) At the request of the qualifying utility;
(B) in accordance with any restrictions and limitations on amendment set forth in the financing order;
and (C) subject to the limitations set forth in subdivision (1) of this subsection.
(3) No change in the credit rating on the unsecured obligations of a qualifying utility from the
credit rating that supported the determination by the Commission required in paragraph (A),
subdivision (3), subsection (d) of this section shall impair the irrevocability of the financing order
specified in subdivision (1) of this subsection.
(g) Judicial review. -- An order of the Commission issued pursuant to subdivision (2),
subsection (d) of this section is a final order of the Commission. Any party aggrieved by the issuance
of any such order may petition for suspension and review thereof by the Supreme Court of Appeals
pursuant to section one, article five of this chapter. In the case of any petition for suspension and
review, the Supreme Court of Appeals shall proceed to hear and determine the action as expeditiously as practicable and give the action precedence over other matters not accorded similar precedence by
law.
(h) Effect of financing order. --
(1) A financing order shall remain in effect until the environmental control bonds issued
pursuant to the financing order have been paid in full and all financing costs relating to the
environmental control bonds have been paid in full.
(2) A financing order shall remain in effect and unabated notwithstanding the bankruptcy,
reorganization, or insolvency of the qualifying utility or any affiliate thereof or the commencement
of any judicial or nonjudicial proceeding therefor.
(3) For so long as environmental control bonds issued pursuant to a financing order are
outstanding and the related environmental control costs and financing costs have not been paid in full,
the environmental control charges authorized to be imposed in the financing order shall be
nonbypassable and shall apply to:
(A) All customers of the qualifying utility located within the utility service area, whether or
not the customers may become entitled by law to purchase electric generation services from a
provider of electric generation services other than a qualifying utility; and
(B) Any person or legal entity located within the utility service area that may subsequently
receive electric delivery service from another public utility operating in the same service area.
(i) Limitations on jurisdiction of Commission. --
(1) If the Commission issues a financing order, the Commission may not, in exercising its
powers and carrying out its duties regarding regulation and ratemaking, consider environmental
control bonds issued pursuant to the financing order to be the debt of the qualifying utility, the
environmental control charges paid under the financing order to be revenue of the qualifying utility,
or the environmental control costs or financing costs specified in the financing order to be the costs
of the qualifying utility, nor may the Commission determine that any action taken by a qualifying
utility that is consistent with the financing order is unjust or unreasonable from a regulatory or ratemaking perspective: Provided, That subject to the limitations set forth in subsection (f) of this
section, nothing in this subdivision shall: (i) Affect the authority of the Commission to apply the
adjustment mechanism as provided in subsection (e) of this section; (ii) prevent or preclude the
Commission from investigating the compliance of a qualifying utility with the terms and conditions
of a financing order and requiring compliance therewith; or (iii) prevent or preclude the Commission
from imposing regulatory sanctions against a qualifying utility for failure to comply with the terms
and conditions of a financing order or the requirements of this section.
(2) The Commission may not order or otherwise require, directly or indirectly, any public
utility to use environmental control bonds to finance any project, addition, plant, facility, extension,
capital improvement, environmental control equipment, or any other expenditure.
(3) The Commission may not refuse to allow the recovery of any costs associated with the
performance of environmental control activities by a public utility solely because the public utility
has elected or may elect to finance the performance of those activities through a financing mechanism
other than the issuance of environmental control bonds.
(j) Duties of qualifying utility. --
(1) A qualifying utility for which a financing order has been issued shall cause the proceeds
of any environmental control bonds issued pursuant to a financing order to be placed in a separate
account. A qualifying utility may use the proceeds of the issuance of environmental control bonds
for paying environmental control costs and financing costs and for no other purpose.
(2) A qualifying utility for which a financing order has been issued shall annually provide to
its customers a concise explanation of the environmental control charges approved in a financing
order, as modified by subsequent issuances of environmental control bonds authorized under a
financing order, if any, and by application of the adjustment mechanism as provided in subsection (e)
of this section. These explanations may be made by bill inserts, website information, or other
appropriate means.
(3) Environmental control revenues shall be applied solely to the repayment of environmental control bonds and other financing costs.
(4) The failure of a qualifying utility to apply the proceeds of an issuance of environmental
control bonds in a reasonable, prudent and appropriate manner or otherwise comply with any
provision of this section shall not invalidate, impair or affect any financing order, environmental
control property, environmental control charge or environmental control bonds: Provided, That
subject to the limitations set forth in subsection (f) of this section, nothing in this subdivision shall
prevent or preclude the Commission from imposing regulatory sanctions against a qualifying utility
for failure to comply with the terms and conditions of a financing order or the requirements of this
section.
(k) Environmental control property. --
(1) Environmental control property that is specified in a financing order shall constitute an
existing, present property right, notwithstanding the fact that the imposition and collection of
environmental control charges depend on the qualifying utility continuing to provide electric energy
or continuing to perform its servicing functions relating to the collection of environmental control
charges or on the level of future energy consumption. Environmental control property shall exist
whether or not the environmental control revenues have been billed, have accrued or have been
collected, and notwithstanding the fact that the value or amount of the environmental control property
is dependent on the future provision of service to customers by the qualifying utility. (2) All
environmental control property specified in a financing order shall continue to exist until the
environmental control bonds issued pursuant to a financing order are paid in full and all financing
costs relating to the bonds have been paid in full.
(3) All or any portion of environmental control property may be transferred, sold, conveyed,
or assigned to any person or entity not affiliated with the qualifying utility or to any affiliate of the
qualifying utility created for the limited purposes of acquiring, owning or administering
environmental control property or issuing environmental control bonds under the financing order or
a combination of these purposes. All or any portion of environmental control property may be pledged to secure the payment of environmental control bonds, amounts payable to financing parties
and bondholders, amounts payable under any ancillary agreement and other financing costs. Any
transfer, sale, conveyance, assignment, grant of a security interest in or pledge of environmental
control property by a qualifying utility or affiliate of a qualifying utility to an affiliate of the qualifying
utility, to the extent previously authorized in a financing order, does not require the prior consent and
approval of the Commission under section twelve of this article.
(4) If a qualifying utility defaults on any required payment of environmental control revenues,
a court, upon application by an interested party, and without limiting any other remedies available to
the applying party, shall order the sequestration and payment of the environmental control revenues
for the benefit of bondholders, any assignee, and any financing parties. The order shall remain in full
force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with
respect to the qualifying utility or any affiliate thereof.
(5) Environmental control property and environmental control revenues, and the interests of
an assignee, bondholder, or financing party in environmental control property and environmental
control revenues, are not subject to setoff, counterclaim, surcharge or defense by the qualifying utility
or any other person or in connection with the bankruptcy, reorganization or other insolvency
proceeding of the qualifying utility, any affiliate thereof or any other entity.
(6) Any successor to a qualifying utility shall be bound by the requirements of this section and
shall perform and satisfy all obligations of, and have the same rights under a financing order as, the
qualifying utility under the financing order in the same manner and to the same extent as the
qualifying utility, including without limitation, the obligation to collect and pay to the person entitled
to receive them environmental control revenues.
(l) Security interests. -- Except as otherwise provided in this subsection, the creation,
perfection and enforcement of any security interest in environmental control property to secure the
repayment of the principal of and interest on environmental control bonds, amounts payable under
any ancillary agreement and other financing costs are governed by this subsection and not the provisions of chapter forty-six of this code. All of the following shall apply:
(1) The description or indication of environmental control property in a transfer or security
agreement and a financing statement is sufficient only if the description or indication refers to this
section and the financing order creating the environmental control property. This subdivision applies
to all purported transfers of, and all purported grants of liens on or security interests in, environmental
control property, regardless of whether the related transfer or security agreement was entered into, or
the related financing statement was filed, before or after the effective date of this section.
(2) A security interest in environmental control property is created, valid, and binding at the
later of the time: (i) The financing order is issued; (ii) a security agreement is executed and delivered;
and (iii) value is received for the environmental control bonds. The security interest attaches without
any physical delivery of collateral or other act, and the lien of the security interest shall be valid,
binding and perfected against all parties having claims of any kind in tort, contract, or otherwise
against the person granting the security interest, regardless of whether such parties have notice of the
lien, upon the filing of a financing statement with the office of the Secretary of State. The office of
the Secretary of State shall maintain any such financing statement in the same manner and in the same
record keeping system it maintains for financing statements filed pursuant to article nine, chapter
forty-six of this code. The filing of any financing statement under this subdivision shall be governed
by the provisions regarding the filing of financing statements in article nine, chapter forty-six of this
code.
(3) A security interest in environmental control property is a continuously perfected security
interest and has priority over any other lien, created by operation of law or otherwise, which may
subsequently attach to the environmental control property unless the holder of any such lien has
agreed in writing otherwise.
(4) The priority of a security interest in environmental control property is not affected by the
commingling of environmental control revenues with other amounts. Any pledgee or secured party
shall have a perfected security interest in the amount of all environmental control revenues that are deposited in any cash or deposit account of the qualifying utility in which environmental control
revenues have been commingled with other funds and any other security interest that may apply to
those funds shall be terminated when they are transferred to a segregated account for the assignee or
a financing party.
(5) No subsequent order of the Commission amending a financing order pursuant to
subdivision (2), subsection (f) of this section, and no application of the adjustment mechanism as
provided in subsection (e) of this section, will affect the validity, perfection or priority of a security
interest in or transfer of environmental control property.
(m) Sales of environmental control property. --
(1) Any sale, assignment or transfer of environmental control property shall be an absolute
transfer and true sale of, and not a pledge of or secured transaction relating to, the seller's right, title
and interest in, to and under the environmental control property if the documents governing the
transaction expressly state that the transaction is a sale or other absolute transfer. A transfer of an
interest in environmental control property may be created only when all of the following have
occurred: (i) The financing order creating the environmental control property has become effective;
(ii) the documents evidencing the transfer of environmental control property have been executed and
delivered to the assignee; and (iii) value is received. Upon the filing of a financing statement with
the office of the Secretary of State, a transfer of an interest in environmental control property shall
be perfected against all third persons, including any judicial lien or other lien creditors or any claims
of the seller or creditors of the seller, other than creditors holding a prior security interest, ownership
interest or assignment in the environmental control property previously perfected in accordance with
this subdivision or subdivision (2), subsection (l) of this section. The office of the Secretary of State
shall maintain any such financing statement in the same manner and in the same record-keeping
system it maintains for financing statements filed pursuant to article nine, chapter forty-six of this
code.
(2) The characterization of the sale, assignment or transfer as an absolute transfer and true sale and the corresponding characterization of the property interest of the purchaser, shall not be affected
or impaired by, among other things, the occurrence of any of the following factors:
(A) Commingling of environmental control revenues with other amounts;
(B) The retention by the seller of: (i) A partial or residual interest, including an equity interest,
in the environmental control property, whether direct or indirect, or whether subordinate or otherwise;
or (ii) the right to recover costs associated with taxes, franchise fees or license fees imposed on the
collection of environmental control revenues;
(C) Any recourse that the purchaser may have against the seller;
(D) Any indemnification rights, obligations or repurchase rights made or provided by the
seller;
(E) The obligation of the seller to collect environmental control revenues on behalf of an
assignee;
(F) The treatment of the sale, assignment or transfer for tax, financial reporting or other
purposes;
(G) Any subsequent order of the Commission amending a financing order pursuant to
subdivision (2), subsection (f) of this section; or
(H) Any application of the adjustment mechanism as provided in subsection (e) of this section.
(n) Exemption from municipal taxation. -- The imposition, collection and receipt of
environmental control revenues are not subject to taxation by any municipality of the state under the
authority granted to municipalities in sections five and five-a, article thirteen, chapter eight of this
code.
(o) Environmental control bonds not public debt. -- Environmental control bonds issued
pursuant to a financing order and the provisions of this section shall not constitute a debt or a pledge
of the faith and credit or taxing power of this state or of any county, municipality or any other political
subdivision of this state. Bondholders shall have no right to have taxes levied by the Legislature or
the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon. The issuance of environmental control bonds
does not, directly or indirectly or contingently, obligate the state or a political subdivision of the state
to levy any tax or make any appropriation for payment of the principal of or interest on the bonds.
(p) Environmental control bonds as legal investments. -- Any of the following may legally
invest any sinking funds, moneys or other funds belonging to them or under their control in
environmental control bonds:
(1) The state, the West Virginia Investment Management Board, the West Virginia Housing
Development Fund, municipal corporations, political subdivisions, public bodies and public officers
except for members of the Public Service Commission.
(2) Banks and bankers, savings and loan associations, credit unions, trust companies, building
and loan associations, savings banks and institutions, deposit guarantee associations, investment
companies, insurance companies and associations and other persons carrying on a banking or
insurance business, including domestic for life and domestic not for life insurance companies; and
(3) Personal representatives, guardians, trustees and other fiduciaries.
(q) State pledge. --
(1) The state pledges to and agrees with the bondholders, any assignee and any financing
parties that the state will not take or permit any action that impairs the value of environmental control
property or, except as allowed under subsection (e) of this section, reduce, alter or impair
environmental control charges that are imposed, collected and remitted for the benefit of the
bondholders, any assignee, and any financing parties, until any principal, interest and redemption
premium in respect of environmental control bonds, all financing costs and all amounts to be paid to
an assignee or financing party under an ancillary agreement are paid or performed in full.
(2) Any person who issues environmental control bonds is permitted to include the pledge
specified in subdivision (1) of this subsection in the environmental control bonds, ancillary
agreements and documentation related to the issuance and marketing of the environmental control
bonds.
(r) Choice of law. -- The law governing the validity, enforceability, attachment, perfection,
priority and exercise of remedies with respect to the transfer of an interest or right or creation of a
security interest in any environmental control property, environmental control charge or financing
order shall be the laws of the State of West Virginia as set forth in this section and article nine,
chapter forty-six of this code.
(s) Conflicts. -- In the event of conflict between this section and any other law regarding the
attachment, assignment or perfection, or the effect of perfection, or priority of any security interest
in or transfer of environmental control property, this section shall govern to the extent of the conflict.
(t) Effect of invalidity on actions. -- Effective on the date that environmental control bonds
are first issued under this section, if any provision of this section is held to be invalid or is invalidated,
superseded, replaced, repealed or expires for any reason, that occurrence shall not affect any action
allowed under this section that is taken by the Commission, a qualifying utility, an assignee, a
collection agent, a financing party, a bondholder, or a party to an ancillary agreement, and any such
action shall remain in full force and effect.
(u) Effectiveness of section. -- No qualifying utility may make initial application for a
financing order after the date which is five years after the effective date of this section. This
subsection shall not be construed to preclude any qualifying utility for which the Commission has
initially issued a financing order from applying to the Commission: (i) For a subsequent order
amending the financing order pursuant to subdivision (2), subsection (f) of this section; or (ii) for
approval of the issuance of environmental control bonds to refund all or a portion of an outstanding
series of environmental control bonds.
(v) Severability. -- If any subsection, subdivision, paragraph or subparagraph of this section
or the application thereof to any person, circumstance, or transaction is held by a court of competent
jurisdiction to be unconstitutional or invalid, the unconstitutionality or invalidity shall not affect the
constitutionality or validity of any other subsection, subdivision, paragraph or subparagraph of this
section or its application or validity to any person, circumstance, or transaction, including without limitation, the irrevocability of a financing order issued pursuant to this section, the validity of the
issuance of environmental control bonds, the imposition of environmental control charges, the
transfer or assignment of environmental control property, or the collection and recovery of
environmental control revenues. To these ends, the Legislature hereby declares that the provisions
of this section are intended to be severable and that the Legislature would have enacted this section
even if any subsection, subdivision, paragraph or subparagraph of this section held to be
unconstitutional or invalid had not been included in this section.
CHAPTER 46. UNIFORM COMMERCIAL CODE.
ARTICLE 9. SECURED TRANSACTIONS; SALES OF ACCOUNTS AND CHATTEL
PAPER.
SUBPART 2. APPLICABILITY OF ARTICLE.
§46-9-109. Scope.
(a) General scope of article. -- Except as otherwise provided in subsections (c) and (d) of this
section, this article applies to:
(1) A transaction, regardless of its form, that creates a security interest in personal property
or fixtures by contract;
(2) An agricultural lien;
(3) A sale of accounts, chattel paper, payment intangibles or promissory notes;
(4) A consignment;
(5) A security interest arising under section 2-401, 2-505, 2-711(3) or 2A-508(5) as provided
in section 9-110; and
(6) A security interest arising under section 4-210 or 5-118.
(b) Security interest in secured obligation. -- The application of this article to a security
interest in a secured obligation is not affected by the fact that the obligation is itself secured by a
transaction or interest to which this article does not apply.
(c) Extent to which article does not apply. -- This article does not apply to the extent that:
(1) A statute, regulation or treaty of the United States preempts this article; or
(2) The rights of a transferee beneficiary or nominated person under a letter of credit are
independent and superior under section 5-114.
(d) Inapplicability of article. -- This article does not apply to:
(1) A landlord's lien, other than an agricultural lien;
(2) A lien, other than an agricultural lien, given by statute or other rule of law for services or
materials, but section 9-333 applies with respect to priority of the lien;
(3) An assignment of a claim for wages, salary or other compensation of an employee;
(4) A sale of accounts, chattel paper, payment intangibles or promissory notes as part of a sale
of the business out of which they arose;
(5) An assignment of accounts, chattel paper, payment intangibles or promissory notes which
is for the purpose of collection only;
(6) An assignment of a right to payment under a contract to an assignee that is also obligated
to perform under the contract;
(7) An assignment of a single account, payment intangible or promissory note to an assignee
in full or partial satisfaction of a preexisting indebtedness;
(8) A transfer of an interest in or an assignment of a claim under a policy of insurance, other
than an assignment by or to a health care provider of a health care-insurance receivable and any
subsequent assignment of the right to payment, but sections 9-315 and 9-322 apply with respect to
proceeds and priorities in proceeds;
(9) An assignment of a right represented by a judgment, other than a judgment taken on a right
to payment that was collateral;
(10) A right of recoupment or set-off, but:
(A) Section 9-340 applies with respect to the effectiveness of rights of recoupment or set-off
against deposit accounts; and
(B) Section 9-404 applies with respect to defenses or claims of an account debtor;
(11) The creation or transfer of an interest in or lien on real property, including a lease or rents
thereunder, except to the extent that provision is made for:
(A) Liens on real property in sections 9-203 and 9-308;
(B) Fixtures in section 9-334;
(C) Fixture filings in sections 9-501, 9-502, 9-512, 9-516, and 9-519; and
(D) Security agreements covering personal and real property in section 9-604;
(12) An assignment of a claim arising in tort, other than a commercial tort claim, but sections
9-315 and 9-322 apply with respect to proceeds and priorities in proceeds;
(13) An assignment of a deposit account in a consumer transaction, but sections 9-315 and
9-322 apply with respect to proceeds and priorities in proceeds; or
(14) A transfer by a government or a governmental unit; or
(15) A transfer of security interest in any interest or right, or any portion or any interest or
right in any environmental control property, environmental control charge or financing order as each
term is defined in section four-e, article two, chapter twenty-four of this code."
There being no further amendments, the bill was then ordered to third reading.
S. B. 492, Relating to claims against state: on second reading, coming up in regular order, was
read a second time and ordered to third reading.
Com. Sub. for
S. B. 498, Clarifying responsibility of Prosecuting Attorneys Institute; other
provisions; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
Com. Sub. for S. B. 575, Authorizing crossbow hunting for disabled persons; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Agriculture and Natural Resources, 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 two new sections, designated §20-2-5g and §20-2-42w, all to read as follows:
"ARTICLE 2. WILDLIFE RESOURCES.
§20-2-5g. Use of a crossbow by certain physically disabled persons.
(a) Notwithstanding any other provision of this code to the contrary, a person who possesses
a valid Class Y permit in accordance with section forty-two-w of this article may, during the
designated archery hunting season, hunt with a crossbow.
(b) Only crossbows meeting all of the following specifications may be used for hunting in
West Virginia:
(1) The crossbow has a minimum draw weight of one hundred twenty-five pounds;
(2) The crossbow has a working safety; and
(3) The crossbow is used with bolts and arrows not less than eighteen inches in length with
a broad head having at least two sharp cutting edges, measuring at least 3/4 of an inch in width.
§20-2-42w. Class Y special crossbow hunting permit for certain disable persons.
(a) On or after the first day of January, two thousand six, a Class Y permit shall be a special
statewide hunting permit and shall entitle the permittee to hunt all wildlife during established archery
seasons. An application shall be furnished by the director and a Class Y permit allowing the holder
to use a crossbow, during the archery hunting seasons, to applicants who meet the following
requirements:
(1) He or she holds a Class Q permit;
(2) He or she has a permanent and substantial loss of function in one or both hands while
failing to meet the minimum standards of the upper extremity pinch, grip and nine-hole peg tests
administered under the direction of a licensed physician; or
(3) A permanent and substantial loss of function in one or both shoulders while failing to meet
the standards of the standard shoulder strength test, administered under the direction of a licensed
physician.
(b) The application form shall include a written statement or report prepared by a physician, prepared no more than six months preceding the application and verifying that the applicant is
physically disabled as described in this section. As part of the application, the applicant shall
authorize, by written release, an examination of all medical records regarding his or her qualifying
disability. When completed, the permit form constitutes a Class Y permit. The Class Y permit and
a completed license application shall be submitted to the Division, which will issue a wallet sized
card to the permittee. The card and all other documents and identification required to be carried by
this article shall be in the permittee's possession when hunting.
(c) A Class Y permit must be accompanied by a valid statewide hunting license or the
applicant must be exempt from hunting licenses as provided in this chapter.
There being no further amendments, the bill was then ordered to third reading.
S. B. 583, Relating to appealing orders from family court to circuit court, 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 one, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
That §51-2A-11, §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as amended,
be amended and reenacted, all to read as follows:
"ARTICLE 2A. FAMILY COURTS.
§51-2A-11. Petition for appeal.
(a) Within thirty days following the entry of a final order of or the entry of an order denying
a motion for reconsideration under section ten of this article made by a Family Court Judge, or the
entry of a final order of any senior status circuit Judge, circuit Judge or other judicial officer appointed
to serve pursuant to the provisions of section nineteen of this article, any party may file a petition for
appeal with the Circuit Court. No appeal may be had under the provisions of this article from any
order of a Family Court Judge or from any order of another judicial officer temporarily serving as a
Family Court Judge other than a final order.
(b) A petition for appeal of a final order of the Family Court shall be filed in the office of the
clerk of the Circuit Court. At the time of filing the petition, a copy of the petition for appeal must be
served on all parties to the proceeding in the same manner as pleadings subsequent to an original
complaint are served under Rule 5 of the Rules of Civil Procedure.
(c) The circuit Judge may require, or a party may choose to submit with the petition for appeal,
a brief in support of the petition.
(d) A respondent shall have fifteen days after the filing of a petition to file a reply to the
petition for appeal. The reply must be served on all parties to the proceeding in the same manner
required for service of the petition. The circuit Judge may require, or a party may choose to submit
with the reply, a brief in opposition to the petition.
(e) In addition to the reply, the respondent may file a cross-petition to the petition for appeal
within fifteen days after the filing of the petition. The respondent to the cross-petition shall have
fifteen days after the filing of the cross-petition to file a reply. The cross-petition and any reply must
be served in the same manner required for service of the original petition. The circuit Judge may
require or either party may choose to submit a brief on the cross-petition.
(f) The Supreme Court of Appeals shall develop and provide forms for appeals filed pursuant
to this section. The forms shall be made available for distribution in the offices of the clerks of the
Circuit Courts and in the offices of the Secretary-Clerks to the Family Court Judges.
(g) The Supreme Court of Appeals shall promulgate a supervisory rule setting forth
educational requirements in domestic relations matters for Circuit Court Judges.
(h) An appeal from the final order of any judicial officer assigned or appointed pursuant to
the provisions of section nineteen of this article shall be perfected and treated in all respects as an
appeal from an order of the Family Court. The terms "Family Court" or "Family Court Judge" as
provided in this section and in sections twelve, thirteen, fourteen and fifteen of this article mean the
judicial officer who entered the final order which is the subject of an appeal.
§51-2A-l4. Review by Circuit Court; record; standard of review; temporary order upon remand.
(a) The Circuit Court may refuse to consider the petition for appeal may affirm or reverse the
order, may affirm or reverse the order in part or may remand the case with instructions for further
hearing before the Family Court Judge.
(b) In considering a petition for appeal, the Circuit Court may only consider the record as
provided in subsection (d), section eight of this article.
(c) The Circuit Court shall review the findings of fact made by the Family Court Judge under
the clearly erroneous standard and shall review the application of law to the facts under an abuse of
discretion standard.
(c) (d) If the Circuit Court agrees to consider a petition for appeal, the court shall provide the
parties an opportunity to appear for oral argument, upon the request of either party or in the discretion
of the court. The provisions of this subsection are effective until the adoption of rules by the Supreme
Court of Appeals governing the appellate procedures of Family Courts.
(d)(e) If the proceeding is remanded to the Family Court, the Circuit Court must enter
appropriate temporary orders for a parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child, child support, spousal support or such other temporary
relief as the circumstances of the parties may require. If the Circuit Court remands the case to the
Family Court, it must state the legal or factual issues to be considered by the Family Court on remand.
If the Family Court determines that the consideration of those issues also requires consideration of
collateral or interdependent issues, the Family Court may also consider those other collateral or
interdependent issues.
(e)(f) The Circuit Court must enter an order ruling on a petition for appeal within sixty days
from the last day a reply to the petition for appeal could have been filed. If the Circuit Court does not
enter the order within the sixty-day period or does not, within the sixty-day period, enter an order
stating just cause why the order has not been timely entered, the circuit clerk shall send a written
notice to the parties that unless the parties both file an objection within fourteen days of the date of the notice, the appeal will be transferred to the Supreme Court of Appeals as provided in section
fifteen of this article due to the failure of the Circuit Court to timely enter an order. The appeal shall
be transferred without the necessity of the filing of any petition or further document by the petitioner.
§51-2A-16. Expiration of appellate procedures; exceptions; report requirements.
(a) The provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article shall
expire and be of no force and effect after the thirtieth day of June, two thousand five ten, except as
otherwise provided by subsection (b) of this section.
(b) Appeals that are pending before a Circuit Court or the Supreme Court of Appeals on the
thirtieth day of June, two thousand five ten, but not decided before the first day of July, two thousand
five ten, shall proceed to resolution in accordance with the provisions of sections eleven, twelve,
thirteen, fourteen and fifteen of this article, notwithstanding the provisions of subsection (a) of this
section that provide for the expiration of those sections. The Supreme Court of Appeals shall, by rule,
provide procedures for those appeals that are remanded but not concluded prior to the first day of
July, two thousand five ten, in the event that the appeals process set forth in sections eleven, twelve,
thirteen, fourteen and fifteen of this article is substantially altered as of the first day of July, two
thousand five ten.
(c) Prior to the two thousand three eight regular session of the Legislature and annually
thereafter, the Supreme Court of Appeals shall report to the Joint Committee on Government and
Finance the number of appeals from final orders of the Family Court filed in the various Circuit
Courts and in the Supreme Court of Appeals, the number of pro se appeals filed, the subject matter
of the appeals, the time periods in which appeals are concluded, the number of cases remanded upon
appeal and such other detailed information so as to enable the Legislature to study the appellate
procedures for Family Court matters and to consider the possible necessity and feasibility of creating
an intermediate appellate court or other system of appellate procedure.
There being no further amendments, the bill was then ordered to third reading.
S. B. 584, Allowing Bureau for Child Support Enforcement enter orders for modification of child support amounts; 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 two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §48-11-106a; and that said code be amended by adding thereto a new section,
designated §48-14-107; and that said code be amended by adding thereto sections, designated §48-18-
201, §48-18-202, §48-18-203, §48-18-204, §48-18-205 and §48-18-206, all to read as follows:
"CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-106a. Modification of support order with the assistance of Bureau for Child Support
Enforcement.
In addition to any other procedure which may exist by law, any party seeking the recalculation
of support and modification under a child support order due to a substantial change in circumstances
pursuant to the provisions of section one hundred six, article eleven of this chapter may seek and
obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures
established under the provisions of sections two hundred one through two hundred six, article
eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for
modification of a support order, including the identification and narrowing of issues associated with
a requested recalculation of support prior to filing the petition, and the preparation and presentation
of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 14. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48-14-107. Modification of support order with the assistance of Bureau for Child Support
Enforcement.
In addition to any other procedure which may exist by law, any party seeking the recalculation
of support and modification under a child support order due to a substantial change in circumstances pursuant to the provisions of section one hundred six, article fourteen of this chapter may seek and
obtain the assistance of the Bureau of Child Support Enforcement, pursuant to the procedures
established under the provisions of sections two hundred one through two hundred six, article
eighteen of this chapter, in the preparation, assessment and presentation of an appropriate petition for
modification of a support order, including the identification and narrowing of issues associated with
a requested recalculation of support prior to filing the petition, and the preparation and presentation
of an appropriate petition and proposed order for modification for consideration by the family court.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-201. General Provisions related to requests for assistance, recalculation of support
amounts, preparation of petition and
proposed orders.
(a) An obligor or an obligee under a child support order may seek and obtain the assistance
of the Bureau for Child Support Enforcement to perform a recalculation of the of the support amount
and prepare and present a petition seeking modification of a child support order and the presentation
of a proposed order modifying support to the family court.
(b) A request for services authorized by this section shall constitute an application for services
from the Bureau for Child Support Enforcement.
(c) The duties and actions directed or authorized when a request is made pursuant to this
section shall be exercised by the employees and agents of the Bureau of Child Support Enforcement
under the supervision and direction of Bureau for Child Support Enforcement Attorneys as part of,
and in addition to, their duties as set out in section one-hundred-three, article nineteen of this chapter.
(d) In performing its duties under this section, the Bureau for Child Support Enforcement is
authorized to issue subpoenas and subpoenas duces tecum, pursuant to the provisions of section one
hundred twenty-three of this article, to require an obligor or obligee to produce and permit inspection
and copying of designated books, papers, documents or tangible things pursuant to Rule 45 of the
Rules of Civil Procedure or section one-hundred twenty-three, article eighteen of this chapter.
(e) When the Bureau for Child Support Enforcement is authorized or required by this section to notify or give notice to a party, the notice shall be given in the same manner as required for service
of a petition for modification of support filed with the family court.
(f) The procedures and forms used shall provide that one party may request that their
residential address and the address and identity of the employer not be revealed to another party.
(g) The Bureau for Child Support Enforcement may refuse to accept a request or take action
on a request for assistance if it determines there are existing ongoing proceedings with which action
taken on the request would create a conflict, or if it determines that the request was not in good faith
based on the allegations made, a history of multiple such requests, or other information. If the Bureau
of Child Support Enforcement makes a determination to refuse the request for assistance, it shall
notify the party making the request for assistance, and if the responding party has already been
notified of the request, the responding party.
(h) The Bureau for Child Support Enforcement shall prepare an explanation of the process and
procedures it will use to process the request for assistance under this section. The explanation shall
be made available generally to the public, given to every person who makes a request, and included
with the notice to the responding party.
§ 48-18-202. Request for assistance by party.
To make a request for assistance under this article, a party shall submit the request in writing
to the Bureau for Child Support Enforcement on a form provided by the Bureau. The written request
form shall include all of the requesting party's information known to the party that is relevant to
determine the child support amount. The request shall be accompanied by:
(1) a copy of the order being modified, or in the discretion of the Bureau, information
sufficient to permit the Bureau to retrieve or identify the order;
(2) a form containing a statement of all of the requesting party's information known to the
party that is relevant to determining the amount of child support, including a general statement or
argument advancing the reason the request is being made;
(3) copies of documentation reasonably available to the requesting party setting forth all of the requesting party's information that is relevant to determine the amount of child support;
(4) a statement setting forth the relevant information pertaining to the responding party's
earnings and child support that is known or believed to be true by the requesting party;
(5) copies of any relevant documentation which the requesting party may have in its
possession which would be relevant to determining the responding party's child support obligations;
and,
(6) a statement of all other known proceedings pending court proceedings or other pending
requests for assistance involving the parties or related to the child or children whose support is being
reevaluated.
§48-18-203 Bureau processing of request for assistance or recalculation.
(a) Upon receipt of a request from a party pursuant to section two hundred two of this article,
the Bureau for Child Support Enforcement shall notify the responding party that a request for
assistance in the recalculation of the support amount and the related preparation and presentation of
a petition or proposed order to modify an existing child support order has been submitted to the
Bureau of Child Support Enforcement.
(b) As a part of the notification provided under subsection (a) of this section, notification
provided by the Bureau of Child Support Enforcement to the responding party shall include the
following:
(1) a blank information statement form, and an explanation of the form;
(2) a statement advising the responding party that if the responding party does not fill out and
return the information statement with accompanying documentation, that the information contained
on the requesting party's information statement and any attached documentation may be used to
prepare a petition and proposed order to modify the parties' existing child support obligations and
filed with the family court, if the submitted information shows a substantial change in the parties'
circumstances;
(3) a copy of the information statement supplied by the requesting party in support of its request;
(4) a request that the responding party submit a statement and supply a copy of any
information or documentation which the responding may have which would challenge, contradict or
supplement the information which has been previously submitted by the requesting party, to allow
the Bureau of Child Support Enforcement to more accurately recalculate any modified child support
obligations of the parties;
(5) an explanation that the Bureau for Child Support Enforcement may refuse to accept a
request or take action on a request if it determines there are existing ongoing proceedings with which
action taken on the request would create a conflict;
(6) a request that responding party provide a list of all other known proceedings pending court
proceedings or other requests for recalculation or modification of the parties' respective child support
obligations; and,
(7) an explanation of the process to be followed by the Bureau of Child Support Enforcement
in providing the requested assistance, recalculation of the parties' modified child support obligations,
including the preparation of a petition proposed order to modify the parties' existing child support
obligations, when appropriate.
(c) The Bureau for Child Support Enforcement may issue a subpoena or subpoena duces
tecum, pursuant to the provisions of section one hundred twenty-three of this article, to require the
responding party to produce and permit inspection and copying of designated books, papers,
documents or tangible things for information which are relevant to determine child support.
(d) The Bureau for Child Support Enforcement may issue a subpoena, pursuant to the
provisions of section one hundred twenty-three of this article, to produce and permit inspection and
copying of designated books, papers, documents or tangible things, relevant to the determination of
child support to persons other than the parties to the support order.
(e) The Bureau for Child Support Enforcement may use other information and other
communications or procedures available to the Bureau for Child Support Enforcement to gather information relevant to the determination of child support.
§48-18-204. Request for meeting with the Bureau.
(a) Either party may ask for an in-person meeting with the Bureau, prior to the preparation or
presentation of any petition to seek a modification of a child support order or any proposed
modification order to the family court. As a part of the initial contact and notice to the parties after
its receipt of an assistance request under this article, the Bureau for Child Support Enforcement shall
inform the parties of their right to meet with the Bureau for Child Support Enforcement, to discuss
the circumstances and any relevant pertaining to the parties' child support obligations. If either party
asks for a meeting, the responding party shall be notified that a meeting has been requested. The
parties shall not meet with the Bureau at the same time except as allowed in the discretion of the
Bureau. No party may be required to meet with the Bureau.
(b) A party may modify an information statement or provide additional documents at the
meeting or at any time before the Bureau sends its proposed order to the family court.
§48-18-205. Bureau action on request of recalculation and presentation of proposed order.
(a) If the Bureau determines that no credible information exists to establish finding of a
substantial change in circumstances as required by section one-hundred five, article eleven or section
one hundred six, article fourteen of this chapter, the Bureau for Child Support Enforcement shall
notify the parties of that fact, and notify the parties that the Bureau of Child Support Enforcement will
not be preparing a petition of proposed order seeking modification of the parties' child support
obligation. Under those circumstances, if the parties disagree with the Bureau of Child Support
Enforcement's assessment and wish to independently file a petition for modification, the parties may
still seek modification of child support by filing a petition for modification of an order for support
with the family court under the provisions of sections one hundred five or one hundred six of article
eleven of this chapter, or under the provisions of section one hundred six, article fourteen of this
chapter.
(b) If the Bureau for Child Support Enforcement determines that there has been a substantial change of circumstances as required by section one-hundred five, article eleven of this chapter or by
section one hundred-six, article fourteen of this chapter, then the Bureau for Child Support
Enforcement shall prepare a petition and proposed order modifying the child support order, to be filed
with the clerk of the family court.
(c) Any such petition filed by the Bureau for Child Support Enforcement filed pursuant to this
article shall include the following:
(1) a copy of the proposed order,
(2) a print out of the child support guidelines calculations,
(3) a notice of the Bureau's action,
(4) the documents and statements relied upon,
(5) any statement of findings or justification the Bureau is required or determines to include,
and
(6) a form and instructions for filing an objection to the proposed order, should a party wish
to do so, which form shall require a statement of the ground or grounds for filing the objection.
(d) The Bureau for Child Support Enforcement's proposed order shall be based on the child
support guidelines: Provided, That the Bureau may disregard the child support guidelines or adjust
the amount as allowed by article thirteen, section seven hundred two of this chapter in the following
instances:
(1) when the previous child support order disregarded the child support guidelines; the
grounds for the disregarding or adjusting the guidelines are stated in the worksheet or previous order
or are agreed upon by the parties, or are otherwise clear; and those grounds continue to exist and can
be applied to the current circumstances, or,
(2) if new grounds for the disregard or adjustment are fully explained in the proposed order.
§48-18-206. Family court action on petition and proposed order prepared by Bureau for Child
Support Enforcement.
(a) Upon receipt of petition for modification and proposed order prepared by the Bureau for Child Support Enforcement in accordance with the provisions of this article, the circuit clerk shall
serve a copy of the petition and the proposed order upon all parties to the proceeding by personal
service or by United States Certified Mail, return receipt requested, and direct the parties to file any
objections to the proposed modified child support order within twenty days of the date of receiving
such notice.
(b) Within five days of the filing of a petition for modification and proposed order, the circuit
clerk shall notify the family court.
(b) If no party files timely objection to the proposed order or timely requests a hearing on the
petition after receiving such notice, then the family court may proceed to review the petition and
proposed order sua sponte, and may issue the proposed order. If the family court receives no
objection, but the family court concludes that the proposed order should not be entered or should be
changed, it shall set the matter for hearing.
(c) If the family court receives an objection to the petition or proposed order, the family court
shall set a date and time for hearing.
(d) At any hearing on the proposed order, the family court shall treat the proposed order as a
motion for modification made by the party requesting the Bureau to initiate the modification. The
actions of the family court at a hearing shall be de novo and shall not be an appeal from the Bureau's
recommended order. The family court shall notify the parties of the hearing and of the parties' rights
and the procedures to be followed.
(e) The fees to be assessed for filing and service of the petition and the disbursement of the
fee for petitions filed pursuant to this section shall be the same as the fee charged by the clerk for
petitioning for an expedited modification of a child support order, as set forth in section eleven, article
one, chapter fifty-nine of this code.
NOTE: The purpose of this bill is to make it easier for all of the parties to a child support
order modify child support when there has been a substantial change of circumstances. This change
may also take some of the work away from the overburdened family court and move it to the state Bureau which receives federal matching funds.
Sections 201 through 206 are new; therefore, strike-throughs and underscoring have been
omitted."
There being no further amendments, the bill was then ordered to second reading.
S. B. 640, Allowing notary public and commissioner use stamped imprint,
; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
S. B. 643, Relating to taxable income of resident estate or trust
; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on
page two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §11-21-18 and §11-21-30 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-18. West Virginia taxable income of resident estate or trust.
The West Virginia taxable income of a resident estate or trust means its federal taxable income
for the taxable year as defined in the laws of the United States and section nine of this article for the
taxable year, with the following modifications:
(1) There shall be subtracted six hundred dollars as the West Virginia personal exemption of
the estate or trust, and there shall be added the amount of its federal deduction for a personal
exemption.
(2) There shall be added or subtracted, as the case may be, the share of the estate or trust in
the West Virginia fiduciary adjustment determined under section nineteen of this article.
(3) There shall be added to federal adjusted gross income, unless already included therein, the
amount of a lump sum distribution for which the taxpayer has elected under section 402(e) of the
Internal Revenue Code of one thousand nine hundred eighty-six, as amended, to be separately taxed for federal income tax purposes: Provided, That the provisions of this subdivision shall first be
effective for taxable years beginning after the thirty-first day of December, one thousand nine hundred
ninety.
(4) There shall be added by an electing small business trust as defined in Section 1361(e) of
the Internal Revenue Code of 1986, as amended, which is a shareholder in one or more electing small
business corporations, the portion of the trust's income attributable to electing small business
corporation stock held by the trust that is not included in the trust's federal taxable income pursuant
to Section 641 of the Internal Revenue Code of 1986, as amended.
(b) The amendments to this section enacted in the regular session of the Legislature in two
thousand five are effective for tax years beginning on or after the first day of January, two thousand
five.
PART III. NONRESIDENT AND PART-YEAR RESIDENTS.
§11-21-30. Computation of tax on income of nonresidents and part-year residents.
(a) Computation of tax. -- For taxable years beginning after the thirty-first day of December,
one thousand nine hundred ninety-one, the tax due under this article on taxable income derived from
sources in this state by a nonresident individual, estate, or trust or by a part-year resident individual
shall be calculated as provided in this section.
(1) Taxpayer shall first calculate tax liability under this article as if taxpayer, whether an
individual, estate or trust, were a resident of this state for the entire taxable year. When determining
tentative tax liability under this subdivision, a nonresident shall be allowed the same deductions,
exemptions and credits that would be allowable if taxpayer were a resident individual, estate or trust,
as the case may be, for the entire taxable year, except that no credit shall be allowed under section
twenty of this article.
(2) The amount of tentative tax determined under subdivision (1) of this subsection shall then
be multiplied by a fraction the numerator of which is the taxpayer's West Virginia source income,
determined in accordance with Part III of this article for the taxable year, and the denominator of which is such taxpayer's "federal adjusted gross income" for the taxable year as defined in section
nine of this article: Provided, That if this computation produces a result that is out of all appropriate
proportion to the amount of taxpayer's West Virginia source income, the tax commissioner may
provide such equitable relief as the tax commissioner, in his or her discretion, considers to be
appropriate under the circumstances.
(b) Special rules for estates and trusts.
-- For purposes of subdivision (1) of subsection (a):
(1) The "federal adjusted gross income" of an estate or trust shall be determined as if such
estate or trust were an individual; and
(2) In the case of a trust, "federal adjusted gross income" shall be its "federal adjusted gross
income" for the taxable year increased by the amount of any includable gain, reduced by any
deductions properly allocable thereto, upon which the tax is imposed for the taxable year pursuant
to Section 644 of the Internal Revenue Code.
(3) When an electing small business trust as defined in Section 1361(e)(1) of the Internal
Revenue Code of 1986, as amended, is a shareholder in one or more electing small business
corporations, the portion of the trust's income attributable to electing small business corporation stock
held by the trust that is not included in the trust's federal taxable income pursuant to Section 641(c)
of that code shall be included in West Virginia taxable income of the trust.
(c) Special rules for part-year residents. --
(1) For purposes of subdivision (1), of subsection (a) of this section, the "federal adjusted
gross income" of a part-year resident individual shall be taxpayer's federal adjusted gross income for
the taxable year, as defined in section nine of this article, increased or decreased, as the case may be,
by the items accrued under subdivision (1), subsection (b), section forty-five forty-four of this article,
to the extent such items are not otherwise included in federal adjusted gross income for the taxable
year, and decreased or increased, as the case may be by the items accrued under subdivision (2),
subsection (b) of said section forty-five, of said subsection, to the extent such items are included in
federal adjusted gross income for the taxable year; and
(2) In computing the tax due as if taxpayer were a resident of this state for the entire tax year,
West Virginia adjusted gross income shall include the accruals specified in subdivision (1) of this
subsection (c), with the applicable modifications described in section forty-five forty-four of this
article.
(d) Definitions. --
(1) "Nonresident estate" means an estate of a decedent who was not a resident of this state at
the time of his or her death.
(2) "Nonresident trust" means a trust which is not a resident trust, as defined in section seven
of this article.
(3) "Part-year resident individual" means an individual who is not a resident or nonresident
of this state for the entire taxable year.
(e) Effective date. -- (1) The provisions of this section shall apply to taxable years beginning
after the thirty-first day of December, one thousand nine hundred ninety-one . As to taxable years
beginning prior to that date, the provisions of this article as then in effect shall apply and be
controlling, and for that purpose, prior law is fully and completely preserved.
(2) The amendments to this section enacted in the regular session of the Legislature in two
thousand five are effective for tax years beginning on or after the first day of January, two thousand
five.".
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 646, Excluding certain homeowners' associations proceeds from business
and occupation tax;
on second reading, coming up in regular order, was read a second time and
ordered to third reading.
S. B. 659, Clarifying definition of "money transmission";
on second reading, coming up in
regular order, was read a second time and ordered to third reading.
Com. Sub. For S. B. 670, Relating to electing supervisors for conservation districts; 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 two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following language:
"CHAPTER 3. ELECTIONS.
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-5. Detailed accounts and verified financial statements required.
(a) Every candidate, financial agent, person and association of persons, organization of any
kind, including every corporation, directly or indirectly, supporting a political committee established
pursuant to paragraph (C), subdivision (1), subsection (b), section eight of this article or engaging in
other activities permitted by this section and also including the treasurer or equivalent officer of the
association or organization, advocating or opposing the nomination, election or defeat of any
candidate, and the treasurer of every political party committee shall keep detailed accounts of every
sum of money or other thing of value received by him or her, including all loans of money or things
of value, and of all expenditures and disbursements made, liabilities incurred, by the candidate,
financial agent, person, association or organization or committee, for political purposes, or by any of
the officers or members of the Committee, or any person acting under its authority or on its behalf.
(b) Every person or association of persons required to keep detailed accounts under this
section shall file with the officers hereinafter prescribed a detailed itemized sworn statement,
according to the following provisions and times:
(1) On the last Saturday in March or within six days thereafter and annually whenever the total
of all financial transactions relating to an election exceed five hundred dollars a statement which shall
include all financial transactions which have taken place by the date of that statement, subsequent to
any previous statement filed within the previous five years under this section;
(2) Not less than ten nor more than seventeen days preceding each primary or other election,
a statement which shall include all financial transactions which have taken place by the date of the
statement, subsequent to the previous statement, if any;
(3) Not less than twenty-five nor more than thirty-one days after each primary or other
election, a statement which shall include all financial transactions which have taken place by the date
of the statement, subsequent to the previous statement; and
(4) On the first Saturday in September or within six days thereafter, preceding the general
election day whenever the total of all financial transactions relating to an election exceed five hundred
dollars or whenever any loans are outstanding, a statement which shall include all financial
transactions which have taken place by the date of the statement, subsequent to the previous
statement.
(c) Every person who shall announce as a write-in candidate for any elective office and his
or her financial agent or election organization of any kind shall comply with all of the requirements
of this section after public announcement of the person's candidacy has been made.
(d) For purposes of this section, the term "financial transactions" includes all contributions
or loans received and all repayments of loans or expenditures made to promote the candidacy of any
person by any candidate or any organization advocating or opposing the nomination, election or defeat
of any candidate to be voted on.
(e) Candidates for the office of conservation district supervisor elected pursuant to the
provisions of article twenty-one-a, chapter nineteen of this code shall only be required to file the
reports required by subdivisions (2) and (3), subsection (b) immediately prior to and after the general
election.
CHAPTER 19. AGRICULTURE.
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-3. Definitions.
Wherever used or referred to in this article, unless a different meaning clearly appears from
the context:
(1) "Agency of this state" includes the government of this state and any subdivision, agency
or instrumentality, corporate or otherwise, of the government of this state.
(2) "Committee" or "State Conservation Committee" means the agency created in section four
of this article.
(3) "District" or "conservation district" means a subdivision of this state, organized in
accordance with the provisions of this article, for the purposes, with the powers and subject to the
restrictions hereinafter set forth.
(4)"Governing body" means the supervisors of any conservation district, town or city, council,
city commission, county court or body acting in lieu of a county court, in this state, and the term
"governmental division" means any conservation district, town, city or county in this state.
(5) "Land occupier" or "occupier of land" includes any person, firm or corporation who shall
hold title to, or shall be in possession of, any lands lying within a district organized under the
provisions of this article, whether as owner, lessee, renter or tenant.
(6) "Landowners" or "owners of land" includes any person or persons, firm or corporation who
shall hold title to three or more acres of any lands lying within a district organized under the
provisions of this article.
(7) "Notice" means notice published as a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and the publication area for such publication
shall be the county in which is located the appropriate area. At any hearing held pursuant to such
notice at the time and place designated in such notice, adjournment may be made from time to time
without the necessity of renewing such notice for such adjournment dates.
(8) "Petition" means a petition filed under the provisions of subsection (a), section five of this
article for the creation of a district.
(9) "Soil conservation", "erosion control" or "erosion prevention projects", when used
throughout the article, shall denote those projects that have been established by federal agencies in
cooperation with state agencies for the purpose of demonstrating soil erosion control and water
conservation practices.
(10) "State" means the State of West Virginia.
(11) "Supervisor" means one of the members of the governing body of a district, elected or
appointed in accordance with the provisions of this article.
(12) "United States" or "agencies of the United States" includes the United States of America,
Natural Resources Conservation Service of the United States Department of Agriculture and any other
agency or instrumentality, corporate or otherwise, of the United States of America.
(13) "Works of improvement" means such structures as may be necessary or convenient for
flood prevention or the conservation, development, utilization or disposal of water.
§19-21A-4. State conservation committee; continuation.
(a) The State Conservation Committee is continued. It serves as an agency of the state and
is to perform the functions conferred upon it in this article. The committee consists of the following
ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry Experiment Station;
(C) The Secretary of the Department of Environmental Protection;
(D) The State Commissioner of Agriculture, who is the chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the Senate, the four citizen
members. Members shall be appointed for four-year terms, which are staggered in accordance with
the initial appointments under prior enactment of this section. In the event of a vacancy, the
appointment is for the unexpired term.
(c) The Committee may invite the Secretary of Agriculture of the United States of America
to appoint one person to serve with the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions, shall adopt a seal, which shall be judicially noticed, and may perform those acts, hold public hearings and adopt or propose for
legislative approval, rules necessary for the execution of its functions under this article.
(e) The State Conservation Committee may employ an administrative officer, technical experts
and other agents and employees, permanent and temporary, as it requires. The administrative officer
and support staff shall be known as the West Virginia Conservation Agency. The Committee shall
determine their qualifications, duties and compensation. The Committee may call upon the Attorney
General of the state for legal services it requires. It may delegate to its chairperson, to one or more
of its members, or to one or more agents or employees, powers and duties it considers proper. The
Committee may secure necessary and suitable office accommodations and the necessary supplies and
equipment. Upon request of the Committee, for the purpose of carrying out any of its functions, the
supervising officer of any state agency or of any state institution of learning shall, insofar as may be
possible, under available appropriations and having due regard to the needs of the agency to which
the request is directed, assign or detail to the Committee, members of the staff or personnel of the
agency or institution of learning and make special reports, surveys or studies required by the
Committee.
(f) A member of the Committee holds office so long as he or she retains the office by virtue
of which he or she is serving on the Committee. A majority of the Committee is a quorum and the
concurrence of a majority in any matter within their duties is required for its determination. The
chairperson and members of the Committee may receive no compensation for their services on the
Committee, but are entitled to reimbursement of expenses, including traveling expenses necessarily
incurred in the discharge of their duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted
with funds or property;
(2) Provide for the keeping of a full and accurate public record of all proceedings and of all
resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) In addition to other duties and powers conferred upon the State Conservation Committee,
it may:
(1) Offer appropriate assistance to the supervisors of conservation districts, organized as
provided in this article, in the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts, organized under the provisions of this
article, informed of the activities and experience of all other districts organized under this article and
facilitate an interchange of advice and experience between the districts and cooperation between
them;
(3) Coordinate the programs of the several conservation districts so far as this may be done
by advice and consultation;
(4) Secure the cooperation and assistance of the United States and any of its agencies and of
agencies of this state in the work of the districts;
(5) Disseminate information throughout the state concerning the activities and programs of
the conservation districts and encourage the formation of the districts in areas where their
organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants and appropriations in money,
services, materials or otherwise from the United States or any of its agencies, from the State of West
Virginia or from other sources and use or expend the money, services, materials or other contributions
in carrying out the policy and provisions of this article, including the right to allocate the money,
services or materials in part to the various conservation districts created by this article in order to
assist them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise
or otherwise any property, real or personal, or rights or interests in the property; maintain, administer,
operate and improve any properties acquired; receive and retain income from the property and to
expend the income as required for operation, maintenance, administration or improvement of the
properties or in otherwise carrying out the purposes and provisions of this article; and sell, lease or otherwise dispose of any of its property or interests in the property in furtherance of the purposes and
the provisions of this article. Money received from the sale of land acquired in the small watershed
program shall be deposited in the special account of the State Conservation Committee and expended
as provided in this article.
(8) To promulgate emergency and legislative rules to effectuate the provisions of this article
as amended and reenacted by the Legislature during the regular session of the Legislature in the year
two thousand five.
§19-21A-5. Creation of conservation districts.
(a) Any twenty-five owners of land lying within the limits of the territory proposed to be
organized into a district may file a petition with the State Conservation Committee asking that a
conservation district be organized to function in the territory described in the petition. Such The
petition shall set forth:
(1) The proposed name of said the district;
(2) That there is need, in the interest of the public health, safety and welfare, for a
conservation district to function in the territory described in the petition;
(3) A description of the territory proposed to be organized as a district, which description shall
not be required to be given by metes and bounds or by legal subdivisions, but shall be deemed
sufficient if generally accurate;
(4) A request that the State Conservation Committee duly define the boundaries for such the
district; that a referendum be held within the territory so defined on the question of the creation of a
conservation district in such the territory; and that the Committee determine that such a district be
created.
Where more than one petition is filed covering neighboring parts of the same region, whether
or not these areas overlap, the State Conservation Committee may consolidate all or any such
petitions.
(b) Within thirty days after such a petition has been filed with the State Conservation Committee, it shall cause due notice to be given of a proposed hearing upon the question of the
desirability and necessity, in the interest of the public health, safety and welfare, of the creation of
such district, upon the question of the appropriate boundaries to be assigned to such district, upon the
propriety of the petition and other proceedings taken under this article and upon all questions relevant
to such inquiries. Notice of the date, place and time of the hearing shall be published no less than
fourteen days prior to the hearing as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code. The publication area is the county or
counties where the proposed district is located. All owners of land within the limits of the territory
described in the petition, and of lands within any territory considered for addition to such the
described territory, and all other interested parties shall have the right to attend such the hearings and
to be heard. If it shall appear appears upon the hearing that it may be desirable to include within the
proposed district territory outside of the area within which due notice of the hearing has been given,
the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire
area considered for inclusion in the district and such further another hearing held. After such the
hearing, if the Committee shall determine determines, upon the facts presented at such the hearing
and upon such other relevant facts and information as may be available, that there is need, in the
interest of the public health, safety and welfare, for a conservation district to function in the territory
considered at the hearing, it shall make and record such determination and shall define, by metes and
bounds or by legal subdivisions, the boundaries of such district. Districts thus defined may be a
watershed or portion thereof and nothing in this article shall be interpreted to exclude from
consideration, small areas often constituting a very small part of a large watershed. The district may
be large or small, but in making such that determination and in defining such the boundaries, the
committee shall give due weight and consideration to the topography of the area considered and of
the state, the composition of soils therein, the distribution of erosion, the prevailing land-use
practices, the desirability and necessity of including within the boundaries the particular lands under
consideration and the benefits such lands may receive from being included within such the boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to
other conservation districts already organized or proposed for organization under the provisions of
this article and such other physical, geographical and economic factors as are relevant, having due
regard to the legislative determinations set forth in section two of this article. The territory to be
included within such the boundaries need not be contiguous. If the Committee shall determine
determines after such the hearing, after due consideration of the said relevant facts, that there is no
need for a conservation district to function in the territory considered at the hearing, it shall make and
record such its determination and shall deny the petition. After six months shall have expired from
the date of the denial of any such petition, subsequent petitions covering the same or substantially the
same territory may be filed as aforesaid and new hearings held and determinations made thereon.
(c) After the Committee has made and recorded a determination that there is need, in the
interest of the public health, safety and welfare, for the organization of a district in a particular
territory and has defined the boundaries thereof, it shall consider the question whether the operation
of a district within such boundaries with the powers conferred upon conservation districts in this
article is administratively practicable and feasible. To assist the Committee in the determination of
such administrative practicability and feasibility, it shall be is the duty of the Committee within a
reasonable time after entry of the finding that there is need for the organization of the proposed
district and the determination of the boundaries thereof, to hold a referendum within the proposed
district upon the proposition of the creation of the district and to cause due notice of such referendum
to be given. The question of the creation of the proposed district shall be submitted to the registered
voters of the proposed district at the next primary or general election. All of the provisions of chapter
three of this code, unless in conflict with the provisions of this article, apply to voting and elections
on the referendum, insofar as practicable.
The question shall be submitted by ballots upon which the words "For creation of a
conservation district of the lands below described and lying in the county (counties) of
____________, ____________, and ____________. Against creation of a conservation district of the lands below described and lying in the county (counties) of ___________, ____________, and
____________" shall appear, with a square before each proposition and a direction to insert an X
mark in the square before one or the other of said the propositions as the voter may favor or oppose
creation of such a district. The ballot shall set forth the boundaries of such the proposed districts as
determined by the Committee. All owners of lands lying within the boundaries of the territory, as
determined by the state conservation committee, shall be eligible to vote in such referendum.
(d) The Committee shall pay all expenses for the issuance of such notices and the conduct of
such and conducting hearings. and referenda and shall supervise the conduct of such hearings and
referenda. It shall issue appropriate regulations promulgate rules in accordance with the provisions
of article three, chapter twenty-nine-a of this code governing the conduct of such hearings. and
referenda and providing for the registration prior to the date of the referendum of all eligible voters,
or prescribing some other appropriate procedure for the determination of those eligible as voters in
such a referendum. No informalities in the conduct of such referendum or in any matter relating
thereto shall invalidate said referendum or the result thereof if notice shall have been given
substantially as herein provided and said referendum shall have been fairly conducted.
(e) The Committee shall publish the result of such the referendum and shall thereafter consider
and determine whether the operation of the district within the defined boundaries is administratively
practicable and feasible. If the Committee shall determine determines that the operation of such the
district is not administratively practicable and feasible, it shall record such its determination and deny
the petition. If the Committee shall determine that the operation of such the district is administratively
practicable and feasible, it shall record such the determination and shall proceed with the organization
of the district in the manner hereinafter provided. In making such its determination the Committee
shall give due regard and weight to the attitudes of the occupiers of lands lying within the defined
boundaries, the number of landowners eligible to vote in such the referendum who shall have voted,
the proportion of the votes cast in such the referendum in favor of the creation of the district to the
total number of votes cast, the approximate wealth and income of the land occupiers of the proposed district, the probable expense of carrying on erosion-control operations within such the district and
such other economic and social factors as may be relevant to such the determination, having due
regard to the legislative determinations set forth in section two of this article: Provided, That the
Committee shall not have authority to determine that the operation of the proposed district within the
defined boundaries is administratively practicable and feasible unless at least sixty per centum of the
votes cast in the referendum upon the proposition of creation of the district shall have been cast in
favor of the creation of such district.
(f) If the Committee shall determine determines that the operation of the proposed district
within the defined boundaries is administratively practicable and feasible, it shall appoint two
supervisors to act with the supervisors elected as provided hereinafter, as the governing body of the
district.
(g) The two appointed supervisors shall present to the Secretary of State an application signed
by them which shall set forth (and such application need contain no detail other than the mere by
recitals: (1) That a petition for the creation of the district was filed with the State Conservation
Committee pursuant to the provisions of this article and that the proceedings specified in this article
were taken pursuant to such the petition; that the application is being filed in order to complete the
organization of the district under this article; and that the Committee has appointed them as
supervisors; (2) the name and official residence of each of the supervisors, together with a certified
copy of the appointments evidencing their right to office; (3) the term of office of each of the
supervisors; (4) the name which is proposed for the district; and (5) the location of the principal office
of the supervisors of the district. The application shall be subscribed and sworn to by each of the said
supervisors before an officer authorized by the laws of this state to take and certify oaths, who shall
certify upon the application that he or she personally knows the supervisors and knows them to be the
officers as affirmed in the application and that each has subscribed thereto in the officer's presence.
The application shall be accompanied by a statement by the State Conservation Committee, which
shall certify (and such statement need contain no detail other than the mere by recitals that a petition was filed, notice issued and hearing held as aforesaid; that the Committee did duly determine that
there is need, in the interest of the public health, safety and welfare, for a conservation district to
function in the proposed territory and did define the boundaries thereof; that notice was given and a
referendum held on the question of the creation of such the district; that the result of such the
referendum showed a majority of the votes cast in such the referendum to be in favor of the creation
of the district; and that thereafter the Committee did duly determine that the operation of the proposed
district is administratively practicable and feasible. The said statement shall set forth the boundaries
of the district as they have been defined by the Committee.
The Secretary of State shall examine the application and statement and, if he or she finds that
the name proposed for the district is not identical with that of any other conservation district of this
state or so nearly similar as to lead to confusion or uncertainty, he or she shall file them and shall
record them in an appropriate book of record in his or her office. If the Secretary of State shall find
finds that the name proposed for the district is identical with that of any other conservation district
of this state, or so nearly similar as to lead to confusion and uncertainty, he or she shall certify such
that fact to the State Conservation Committee which shall thereupon submit to the Secretary of State
a new name for the said district, which shall not be subject to such defects. Upon receipt of such the
new name, free of such defects, the Secretary of State shall record the application and statement, with
the name so modified, in an appropriate book of record in his or her office. The Secretary of State
shall make and issue to the said supervisors a certificate, under the seal of the state, of the due
organization of the said district and shall record such the certificate with the application and
statement. The boundaries of such the district shall include the territory as determined by the State
Conservation Committee as aforesaid, but in no event shall they include any area included within the
boundaries of another conservation district organized under the provisions of this article.
(h) After six months shall have has expired from the date of entry of a determination by the
State Conservation Committee that operation of a proposed district is not administratively practicable
and feasible and denial of a petition pursuant to such determination, subsequent petitions may be filed as aforesaid and action taken thereon in accordance with the provisions of this article.
(i) Petitions for including additional territory within an existing district may be filed with the
State Conservation Committee and the proceedings herein provided for in the case of petitions to
organize a district shall be observed in the case of petitions for such inclusion. The Committee shall
prescribe the form for such petitions, which shall be as nearly as may be in the form prescribed in this
article for petitions to organize a district. Where the total number of landowners in the area proposed
for inclusion shall be is less than twenty-five, the petition may be filed when signed by a majority of
the landowners of such the area and in such case no referendum need be held. In referenda upon
petitions for such inclusion, all owners of land lying within the proposed additional area shall be
eligible to vote.
(j) In any suit, action or proceeding involving the validity or enforcement of, or relating to,
any contract, proceeding or action of the district, the district shall be deemed to have been established
in accordance with the provisions of this article upon proof of the issuance of the aforesaid certificate
by the Secretary of State. A copy of such the certificate duly certified by the Secretary of State shall
be admissible in evidence in any such suit, action or proceeding and shall be proof of the filing and
contents thereof.
§19-21A-6. Election of supervisors for each district.
Within thirty days after the date of issuance by the Secretary of State of a certificate of
organization of a conservation district, nominating petitions may be filed with the State Conservation
Committee to nominate candidates for supervisors of such the district. A candidate for supervisor
shall own land in the district and have the education, training or experience necessary to carry out
the duties required by this article and rules promulgated thereunder. A candidate shall file with the
Committee a sworn written statement specifying that he or she meets the requirements of office. A
candidate may not be placed on the ballot or be seated as a supervisor unless he or she meets these
requirements. The Committee shall provide a list of qualified candidates to the Secretary of State
prior to any election for supervisor at the time and in the manner specified by the Secretary.
The Committee shall have authority to extend the time within which nominating petitions may
be filed. No such nominating petition shall be accepted by the Committee unless it shall be is
subscribed by twenty-five or more owners of lands lying within the boundaries of such the district and
within the boundaries of the county in which the candidate resides. Landowners Registered voters
in the district may sign more than one such nominating petition to nominate more than one candidate
for supervisor. The committee shall give due notice of an election to be held for the election of one
supervisor from each county or portion thereof within the boundaries of the district. The names of
all nominees in each county on behalf of whom such nominating petitions have been filed within the
time designated, shall appear arranged in alphabetical order of the surnames upon a ballot, with a
square before each name and a direction to insert an X mark in the square before any one name to
indicate the voter's preference. All owners of lands lying within registered voters in the district shall
be eligible to vote in such the election for one candidate two candidates from the county or portion
thereof within the boundaries of the district in which they reside. Only such landowners shall be
eligible to vote. The candidate two candidates in each county who shall receive the largest number
of votes cast in such the election by landowners residing in his or her county shall be one of the
elected supervisors for such district. The committee shall pay all expenses of such election, shall
supervise the conduct thereof, shall prescribe regulations governing the conduct of such election and
the determination of the eligibility of voters therein and shall make public the results thereof.
Supervisors shall be elected in the general election to be conducted in the year two thousand eight as
nonpartisan candidates. The term of office for supervisor receiving the second highest number of
votes in the general election of two thousand eight shall be for two years, commencing on the first
day of January, two thousand nine, and ending on the thirty-first day of December, two thousand
eleven. Subsequent terms of office for supervisors elected thereafter shall be for four years. Persons
currently holding the position of supervisor shall, regardless of the expiration of the currently
designated term of office, continue to serve until the two thousand eight election. Unless otherwise
provided or in conflict with this article, the provisions of chapter three shall apply to election of supervisors.
§19-21A-7. Supervisors to constitute governing body of district; qualifications and terms of
supervisors; powers and duties.
(a) The governing body of the district consists of the supervisors, appointed or elected, as
provided in this article. The two supervisors appointed by the committee shall be persons who are
by training and experience qualified to perform the specialized skilled services which are required
of them in the performance of their duties under this section and shall be legal residents and
landowners in the district.
(b) The supervisors shall designate a chairperson and may, from time to time, change the
designation. The On and after the election of supervisors in two thousand eight, term of office of each
supervisor is three four years. A supervisor holds office until his or her successor has been elected
or appointed. In case a new county or portion of a county is added to a district, the committee may
appoint a supervisor to represent it until the next regular election of supervisors for the district takes
place. If a vacancy occurs among the elected supervisors of a district, the Committee shall appoint
a successor from the same county to fill the unexpired term. The appointment shall be made from
a name or list of names submitted by local farm organizations and agencies the conservation district.
(c) When any county or portion of a county lying within the boundaries of a district has in
effect eight hundred or more signed agreements of cooperation with occupiers of land located within
the county, then at the next regular election of supervisors the land occupiers within the county or
portion of the county are entitled to elect two supervisors to represent the county instead of one for
the term and in the manner prescribed in this section. A majority of the supervisors constitutes a
quorum and the concurrence of a majority in any matter within their duties is required for its
determination.
(d) (c) A supervisor is entitled to expenses and a per diem not to exceed thirty dollars when
engaged in the performance of his or her duties.
(e) (d) The supervisors may, with the approval of the State Committee, employ a secretary, technical experts and any other officers, agents and employees, permanent and temporary, as they may
require and shall determine their qualifications, duties and compensation. The supervisors may
delegate to their chairperson, to one or more supervisors or to one or more agents, or employees, those
administrative powers and duties they consider proper. The supervisors shall furnish to the State
Conservation Committee, upon request, copies of the ordinances, rules, orders, contracts, forms and
other documents they adopt or employ and any other information concerning their activities required
in the performance of State Conservation Committee's duties under this article.
(f) (e) The supervisors shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted
with funds or property;
(2) Provide for the keeping of a full and accurate record of all proceedings and of all
resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) (f) Any supervisor may be removed by the State Conservation Committee upon notice and
hearing for neglect of duty or malfeasance in office, but for no other reason.
(h) (g) The supervisors may invite the legislative body of any municipality or county located
near the territory comprised within the district to designate a representative to advise and consult with
the supervisors of a district on all questions of program and policy which may affect the property,
water supply or other interests of the municipality or county."
There being no further amendments, the bill was then ordered to third reading.
S. B. 674, Relating to textbook sales at public institutions of higher education
;
on second
reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous
consent, postponed until the completion of items remaining on second reading.
S. B. 691, Relating to termination of tenancy of factory-built home
; 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 two, section three, line twelve, following the word "no", by
inserting the word "notice".
There being no further amendments, the bill was then ordered to third reading.
S. B. 699, Relating to shareholders' simultaneous participation in corporate meeting;
on
second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 700, Creating Community Infrastructure Investment Program within
Department of Commerce
; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting section, 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 §22-28-1, §22-28-2, §22-28-3, §22-28-4, §22-28-5, §22-28-6, §22-28-7, §22-28-8
and §22-28-9, all to read as follows:
"ARTICLE 28. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.
§22-28-1. Legislative findings.
The Legislature finds and declares that:
(a) There is a growing need for the extension of public water and sewer services throughout
the state and that the extension of such services and facilities maintains the health and economic
vitality of the citizens of West Virginia. In addition, access to such infrastructure facilities is equal
essential to development in all regions of the state.
(b) The extension of public water and sewer services promotes public health and safety in that
it enables businesses, residences, municipalities and other entities to comply with state and federal
water quality standards.
(c) The cost of publicly owned sewer and water facilities are normally born by the state, its
subdivisions and the citizens of West Virginia and public indebtedness incurred to construct such
facilities constitutes a financial burden on the state and its political subdivisions, as well as residential consumers.
(d) The rates for public water and sewer services charged to customers of all service classes
have risen in recent years due primarily to the cost of utility construction and the cost of debt service
associated with such construction.
(e) There are private business entities that are in need of water and sewer services for various
residential, commercial and industrial projects throughout the state and that those entities are willing
to pay the cost associated with constructing needed public water and sewer services and to dedicate
the facility to the local certificated public utility after construction of such facilities.
(f) Those private business entities need a method by which to enter into agreements with
municipal utilities or public service districts that would enable the construction of new infrastructure
as well as the expansion of existing facilities.
(g) The dedication of such infrastructure facilities to the local certificated public utility
without cost greatly benefits the citizens of the state and promotes industrial, commercial and
economic development.
§22-28-2. Definitions.
For the purposes of this article, the following words or terms defined have the meaning
ascribed to them herein:
(a) "Certificate of appropriateness" shall refer to the document evidencing approval of a
project and is issued by the Secretary of the Department of Environmental Protection pursuant to the
provisions of this article. The issuance of such a certificate shall exempt the project from the
provisions of section eleven of article two, chapter twenty-four of this code and, in the case of a
public service district, from the provisions of section twenty-five, article thirteen-a, chapter sixteen
of this code.
(b) "Community infrastructure investment agreement" shall refer to a written agreement
between a municipal utility or public service district and a person that provides for the transfer of
legal title to a project facility from the person to the municipal utility or public service district.
(c) "Community infrastructure investment project" shall refer to any newly constructed or
enlarged and improved project facility that may be transferred to a municipal utility or public service
district without cost to the municipal utility or public service district pursuant to the provisions of this
article.
(d) "Person" shall refer to any individual, partnership, firm, society, association, trust,
corporation or other business entity.
(e) "Project cost" shall refer to the capital cost of proposed community infrastructure
investment project facilities to be constructed pursuant to the provisions of this article. "Project cost"
shall also refer to newly constructed or enlarged and improved existing project facilities. Project cost
shall not refer to any of the costs or expenses of ordinary operation and maintenance of the project
facilities once they become operational.
(f) "Project facilities" shall refer to waste water treatment plants or water treatment plants
constructed pursuant to the provisions of this article and include, but are not limited to, related storage
buildings or structures, meters, hydrants, pump stations, force and gravity mains, transmission lines
and other such fixtures related to the construction of water or sewer facilities. Project facilities shall
not refer to the ordinary extension of collection and distribution lines or facilities from or to the
project constructed pursuant to the provisions of this article to the property of any user of project
facilities.
(g) "Public service district" shall refer to those public corporations and political subdivisions
of the state created pursuant to the provisions of section two, article thirteen-a, chapter sixteen of this
code.
(h) "Secretary" shall refer to the Secretary of the Department of Environmental Protection
established in section six, article one, chapter twenty-two of this code.
§22-28-3. Creation of community infrastructure investment project; certificate of
appropriateness; rule-making authority.
(a) There is hereby created a Community Infrastructure Investment Program within the Department of Environmental Protection. This Program will facilitate the construction or expansion
of project facilities for the promotion of economic development and the protection of public health
and environment in the state. Any public service district or municipal utility that wishes to accept a
project facility constructed pursuant to a community infrastructure investment agreement with a
project cost not to exceed ten million dollars, may apply to the secretary for approval of such project.
Nothing herein shall be construed to require a public service district or municipal utility to use this
program.
(b) Where the Secretary shall have found that the community infrastructure investment project
shall have met the requirements contained in this article, the Secretary shall issue a certificate of
appropriateness to the municipal utility or public service district as evidence of such approval.
(c) Municipal utilities or public service districts may jointly enter into agreements with
persons for the purpose of applying to the Secretary of the Department of Environmental Protection
for approval of project facilities. The minimum terms and conditions of such agreements are
established by the provisions of section four of this article.
(d) The Secretary will, by legislative rule, establish the criteria for the approval of such
projects and shall have sole authority to make such determination.
§22-28-4. Community infrastructure investment agreements; report to Joint Committee on
Government and Finance.
(a) Municipal utilities and public service districts have the power and authority to enter into
community infrastructure investment agreements with any person for the purpose of constructing new
project facilities, or substantially improving or expanding project facilities.
(b) Notwithstanding any other provision in this code to the contrary, the secretary shall have
the power and the authority to review and approve all such community infrastructure investment
agreements pursuant to this article.
(c) Each such agreement shall contain as a minimum the following terms and conditions to
be performed by the parties thereto:
(1) The project facilities shall be engineered and constructed in accordance with the
requirements for new construction established by the municipal utility or public service district;
(2) Proof or certification of the financial ability of the municipal utility or public service
district to maintain and operate the public facilities;
(3) Certification that upon completion and activation of the project facility or improvements
to the project facility, the title to the public facility shall be transferred without cost to the municipal
utility or public service district;
(4) A finding that the construction of the new public facility, or the substantial improvement
or expansion of an existing public facility, either: (i) Fosters economic growth by promoting
commercial, industrial or residential development; and (ii) improves water quality or otherwise
enables the affected territory to achieve compliance with any applicable state or federal health or
environmental law;
(5) The municipal utility or public service district will receive or otherwise obtain without cost
to the public all necessary rights of way for the operation of the public facility;
(6) The rates charged by the municipal utility or public service district to new customers to
be served by the project facility shall be the rates in effect at the time of transfer of the project facility
to the utility plus any additional cost of service borne by the municipal utility or public service district
as a result of the project facility until such time as new rates may be finally enacted by the municipal
utility or proposed by the public service district and approved by the Public Service Commission and
the rates charged by the municipal utility or the public service district to existing customers shall not
be impacted as a result of the obligation of the public service district or municipal utility pursuant to
the community infrastructure investment agreement;
(7) Confirmation that the agreement does not violate any of the bond covenants imposed on
the municipal utility or public service district;
(8) Proof that necessary permits, where applicable, have been obtained from the Division of
Health and the Department of Environmental Protection;
(9) Evidence that the person responsible for the construction of or improvements to the public
facility has provided funding to the municipal utility or public service district for the engagement of
an engineer qualified to design and certify the structural integrity and capacity of the project facility;
(10) Proof that the person responsible for construction of or improvements to the public
facility has obtained a performance bond payable to the municipal utility or public service district
equal to the estimated cost of construction: Provided, That the form of the bond required by this
section shall be approved by the Secretary and may include, at the option of the Secretary, surety
bonding, collateral bonding (including cash and securities), establishment of an escrow account,
letters of credit, performance bonding fund participation as established by the Secretary, self-bonding
or a combination of these methods; and
(11) Any other conditions that the secretary may determine to be relevant as established.
(d) Where the Secretary has found that the community infrastructure investment agreement
meets the requirements contained in this article, the Secretary shall issue a certificate of
appropriateness to the parties as evidence of such approval.
(e) Not later than thirty days prior to the issuance of a certificate of appropriateness for any
community infrastructure investment project, the Secretary shall first submit a report of the same to
the Joint Committee on Government and Finance.
§22-28-5. Authority of the Department of Environmental Protection and Division of Health
not affected.
Nothing contained in this article shall be construed to affect the authority of the Department
of Environmental Protection pursuant to the provisions of chapter twenty-two of this code, nor the
authority of the Division of Health pursuant to the provisions of chapter sixteen of this code.
Facilities discharging into the Potomac River watershed and its tributaries, shall be designed to
achieve nutrient reductions, for both Nitrogen and Phosphorus, consistent with West Virginia's
participation in the Chesapeake Bay Program upon implementation of the Chesapeake Bay standards
by the Secretary.
§22-28-6. Time for approval.
The Secretary shall approve or reject all applications for a community investment
infrastructure project or agreement within thirty days, unless, by mutual agreement, such time period
is extended. In no case, shall the time period extend beyond ninety days.
§22-28-7. Fees.
The Secretary shall establish by legislative rule a schedule of fees reasonably calculated to pay
for the costs of the administration of the provisions of this article.
§22-28-8. Exemption from Public Service Commission approval.
All project facilities constructed or improved pursuant to the provisions of this article shall
be exempt from the provisions of chapter twenty-four of this code until such time as title to the public
facility shall be transferred to the municipal utility or public service district. Nothing herein shall be
construed to give the Public Service Commission authority to regulate or intervene in the approval
and construction of any project or agreement provided in this article. Notwithstanding any other
provision of this code to the contrary, the acquisition of a project facility by a municipality or public
service district under the provisions of this article shall not require the issuance of a certificate of
convenience and necessity from the Public Service Commission.
§22-28-9. Rule-making authority.
The Secretary shall have the authority to propose legislative rules for promulgation in
accordance with the provisions of section one, article three, chapter twenty-nine-a of this code to
effectuate the purposes of this article. Notwithstanding any provision of this code to the contrary, the
proposed legislative rules for this article filed in the state register by the first day of August, two
thousand five, may be filed as emergency rules."
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 716, Creating Regional Jail Operators Partial Reimbursement Fund; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, 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 §31-20-10b; that §50-3-1, §50-3-2, and §50-3-4a of said code be amended and
reenacted; and that §59-1-11 and §59-1-28a of said code be amended and reenacted, all to read as
follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY
AUTHORITY.
§31-20-10b. Regional Jail Operations Partial Reimbursement Fund.
(a) There is created in the State Treasury a new fund designated the Regional Jail Operations
Partial Reimbursement Fund.
(b) Revenues deposited into this Fund shall be composed of fees collected by magistrate courts
pursuant to subsection (g), section one and subdivision(3), subsection (a), section two, article three,
chapter fifty of this code and by circuit courts pursuant to section eleven, article one, chapter fifty-
nine of this code.
(c) Revenues deposited into this Fund shall be used to reimburse those counties and
municipalities participating in the regional jail system for the cost of incarceration.
(d) The State Treasurer shall, in cooperation with the Regional Jail and Correctional Facility
Authority, administer the Fund. The State Treasurer shall determine the amount of funds available
for reimbursement and, upon receiving a report from the Regional Jail and Correctional Facility
Authority which presents the total number of inmate days in the fiscal year immediately concluded,
the State Treasurer shall calculate the reimbursement to each participant based upon a pro rata share
formula.
(e) A participant's share shall be comparable with its total of inmate days, which shall consist
of the number of inmates it contributed to the regional jail system and the number of days those inmates remained incarcerated.
(f) Within ninety days of the first day of July, two thousand six and annually thereafter, each
participant shall receive its reimbursement from this Fund.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
The following costs shall be charged in magistrate courts in civil actions and shall be collected
in advance:
(a) For filing and trying any civil action and for all services connected therewith, but excluding
services regarding enforcement of judgment, the following amounts dependent upon the amount of
damages sought in the complaint:
Where the action is for five hundred dollars
or less$30.00
Where the action is for more than five hundred
dollars but not more than one thousand dollars $35.00
Where the action is for more than one thousand
dollars but not more than two thousand dollars$40.00
Where the action is for more than two thousand
dollars$50.00
Where the action seeks relief other than money
damage$30.00
Five dollars from each of the filing fees listed above shall be deposited in the court security
fund created by the provisions of section fourteen, article three, chapter fifty-one of this code.
Five dollars from each of the filing fees listed above shall be deposited in the courthouse
facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this
code.
(b) For each service regarding enforcement of
a judgment including execution, suggestion,
garnishment and suggestee execution$5.00
(c) For each bond filed in a case$1.00
(d) For taking deposition of witness
for each hour or portion thereof$1.00
(e) For taking and certifying acknowledgment
of a deed or other writing or taking oath
upon an affidavit$ .50
(f) For mailing any matter required or
provided by law to be mailed by certified or
registered mail with return receipt$1.00
(g) For filing and trying any civil action
$20.00
Costs incurred in a civil action shall be reflected in any judgment rendered thereon. The
provisions of section one, article two, chapter fifty-nine of this code, relating to the payment of costs
by poor persons, shall be applicable to all costs in civil actions.
§50-3-2. Costs in criminal proceedings.
(a) In each criminal case before a magistrate court in which the defendant is convicted,
whether by plea or at trial, there is imposed, in addition to other costs, fines, forfeitures or penalties
as may be allowed by law: (1) Costs in the amount of sixty dollars, of which five dollars of that
amount shall be deposited in the courthouse facilities improvement fund created by section six, article
twenty-six, chapter twenty-nine of this code; and (2) an amount equal to the one-day per diem
provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code; and (3) costs
in the amount of thirty dollars to be deposited in the regional jail operations partial reimbursement
fund created by section ten-b, article twenty, chapter thirty-one of this code. A magistrate may not
collect costs in advance. Notwithstanding any other provision of this code, a person liable for fines and court costs in a criminal proceeding in which the defendant is confined in a jail or prison and not
participating in a work release program shall not be held liable for the fines and court costs until
ninety days after completion of the term in jail or prison. A magistrate court shall deposit five dollars
from each of the criminal proceedings fees collected pursuant to this section in the court security fund
created in section fourteen, article three, chapter fifty-one of this code. A magistrate court shall, on
or before the tenth day of the month following the month in which the fees imposed in this section
were collected, remit an amount equal to the one-day per diem provided for in subsection (h), section
ten, article twenty, chapter thirty-one of this code from each of the criminal proceedings in which the
fees specified in this section were collected to the magistrate court clerk or, if there is no magistrate
court clerk to the clerk of the circuit, together with information as may be required by the rules of the
supreme court of appeals and the rules of the office of chief inspector. These moneys are paid to the
sheriff who shall distribute the moneys solely in accordance with the provisions of section fifteen,
article five, chapter seven of this code. Amendments made to this section during the regular session
of the Legislature, two thousand one, are effective after the thirtieth day of June, two thousand one.
(b) A magistrate shall assess costs in the amount of two dollars and fifty cents for issuing a
sheep warrant and the appointment and swearing appraisers and docketing the proceedings.
(c) In each criminal case which must be tried by the circuit court but in which a magistrate
renders some service, costs in the amount of ten dollars shall be imposed by the magistrate court and
is certified to the clerk of the circuit court in accordance with the provisions of section six, article
five, circuit court but in which a magistrate renders some service, costs in the amount of ten dollars
shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance
with the provisions of section six, article five, chapter sixty-two of this code.
§50-3-4a. Disposition of criminal costs and civil filing fees into State Treasury account for
Regional Jail and Prison Development Fund.
(a) The clerk of each magistrate court shall, at the end of each month, pay into the Regional
Jail and Prison Development Fund in the State Treasury an amount equal to forty dollars of the costs collected in each criminal proceeding and all but ten dollars of the costs collected for the filing of
each civil action.
(b) The clerk of each magistrate court shall, at the end of each month, pay into the Regional
Jail Operations Partial Reimbursement Fund established in section ten-a, article twenty, chapter
thirty-one of this code the fees collected pursuant to subsection (g), section one and subdivision (3),
subsection (a), section two of this article.
CHAPTER 59. FEES, ALLOWANCES AND COSTS, NEWSPAPERS; LEGAL
ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as
such clerk the following fees, and such fees shall be paid in advance by the parties for whom such
services are to be rendered:
(1) For instituting any civil action under the rules of civil procedure, any statutory
summary proceeding, any extraordinary remedy, the docketing of civil appeals or any other action,
cause, suit or proceeding, one hundred twenty-five forty-five dollars, of which thirty dollars of that
amount shall be deposited in the courthouse facilities improvement fund created by section six, article
twenty-six, chapter twenty-nine of this code and ten dollars shall be deposited in the special revenue
account created in section six hundred three, article twenty-six, chapter forty-eight of this code to
provide legal services for domestic violence victims;
(2) For instituting an action for medical professional liability, two hundred sixty
dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities
improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
(3) Beginning on and after the first day of July, one thousand nine hundred
ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred
thirty-five dollars;
(4) For petitioning for the modification of an order involving child custody, child
visitation, child support or spousal support, eighty-five dollars; and
(5) For petitioning for an expedited modification of a child support order, thirty-
five dollars.
(b) In addition to the foregoing fees, the following fees shall likewise be charged
and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court
or otherwise to go out of the office, for each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including copies, postage,
registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight
of this code, three dollars;
(6) For vacation or modification of a suggestee execution, one dollar;
(7) For docketing and issuing an execution on a transcript of judgment from
magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of error, appeal or
removal to any other court, ten dollars, of which five dollars of that amount shall be deposited in the
courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine
of this code;
(9) For postage and express and for sending or receiving decrees, orders or
records, by mail or express, three times the amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or defendant, to be paid
by the party requesting the same, fifty cents;
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any criminal case against
any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five eighty-five dollars; and
(2) In the case of any felony, seventy-five one hundred five dollars, of which ten
dollars of that amount shall be deposited in the courthouse facilities improvement fund created by
section six, article twenty-six, chapter twenty-nine of this code.
(d) The clerk of a circuit court shall charge and collect a fee of twenty-five
dollars per bond for services rendered by the clerk for processing of criminal bonds, and the fee shall
be paid at the time of issuance by the person or entity set forth below:
(1) For cash bonds, the fee shall be paid by the person tendering cash as bond;
(2) For recognizance bonds secured by real estate, the fee shall be paid by the
owner of the real estate serving as surety;
(3) For recognizance bonds secured by a surety company, the fee shall be paid
by the surety company;
(4) For ten percent recognizance bonds with surety, the fee shall be paid by the
person serving as surety; and
(5) For ten percent recognizance bonds without surety, the fee shall be paid by
the person tendering ten percent of the bail amount.
In instances in which the total of the bond is posted by more than one bond
instrument, the above fee shall be collected at the time of issuance of each bond instrument processed
by the clerk, and all fees collected pursuant to this subsection (d) shall be deposited in the courthouse
facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this
code. Nothing in this subsection (d) may be construed as authorizing the clerk to collect the above
fee from any person for the processing of a personal recognizance bond; and
(e) The clerk of a circuit court shall charge and collect a fee of ten dollars for services rendered by the clerk for processing of bailpiece, and the fee shall be paid by the surety at
the time of issuance. All fees collected pursuant to this subsection (e) shall be deposited in the
courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine
of this code.
(f) No such clerk shall be required to handle or accept for disbursement any fees,
cost or amounts, of any other officer or party not payable into the county treasury, except it be on
order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees for services in criminal cases.
(a) Except for those payments to be made from amounts equaling filing fees received for the
institution of divorce actions as prescribed in subsection (b) of this section, and except for those
payments to be made from amounts equaling filing fees received for the institution of actions for
divorce, separate maintenance and annulment as prescribed in said subsection, for each civil action
instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary
remedy, the docketing of civil appeals or any other action, cause, suit or proceeding in the circuit
court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described
in this subsection an amount equal to the amount set forth in this subsection of every filing fee
received for instituting the action as follows:
(1) Into the Regional Jail and Correctional Facility Authority Fund in the State Treasury
established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code the
amount of sixty dollars; and
(2) Into the Court Security Fund in the State Treasury established pursuant to the provisions
of section fourteen, article three, chapter fifty-one of this code the amount of five dollars; and
(3) Into the Regional Jail Operations Partial Reimbursement Fund established pursuant to the
provisions of section ten-b, article twenty, chapter thirty-one of this code the amount of twenty
dollars.
(b) For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the Supreme Court of Appeals,
the number of actions filed by persons unable to pay, and pay into the funds or accounts in this
subsection an amount equal to the amount set forth in this subsection of every filing fee received for
instituting the divorce action as follows:
(1) Into the Regional Jail and Correctional Facility Authority Fund in the State Treasury
established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code the
amount of ten dollars;
(2) Into the special revenue account of the State Treasury, established pursuant to section six
hundred four, article two, chapter forty-eight of this code an amount of thirty dollars;
(3) Into the Family Court Fund established under section twenty-two, article two-a, chapter
fifty-one of this code an amount of seventy dollars; and
(4) Into the Court Security Fund in the State Treasury, established pursuant to the provisions
of section fourteen, article three, chapter fifty-one of this code the amount of five dollars.
(c) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the
clerk of the court shall, at the end of each month, pay into the Family Court Fund established under
section twenty-two, article two-a, chapter fifty-one of this code an amount equal to the amount of
every fee received for petitioning for the modification of an order involving child custody, child
visitation, child support or spousal support as determined by subdivision (3), subsection (a), section
eleven of this article and for petitioning for an expedited modification of a child support order as
provided in subdivision (4) of said subsection.
(d) The clerk of the court from which a protective order is issued shall, at the end of each
month, pay into the family court fund established under section twenty-two, article two-a, chapter
fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five
hundred eight, article twenty-seven, chapter forty-eight of this code.
(e) The clerk of each circuit court shall, at the end of each month, pay into the Regional Jail
and Correctional Facility Authority Fund in the State Treasury an amount equal to forty dollars of every fee for service received in any criminal case against any respondent convicted in such court and
shall pay an amount equal to five dollars of every such fee into the court security fund in the State
Treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of
this code.
(f) Beginning the first day of January, two thousand two, the The clerk of the circuit court
shall, at the end of each month, pay into the Medical Liability Fund established under article twelve-b,
chapter twenty-nine of this code, an amount equal to one hundred sixty-five dollars of every filing fee
received for instituting a medical professional liability action.
(g) The clerk of the circuit court shall, at the end of each month, pay into the Courthouse
Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this
code, those amounts received by the clerk which are dedicated for deposit in the Fund.
(h) The clerk of each circuit court shall, at the end of each month, pay into the Regional Jail
Operations Partial Reimbursement Fund established in the State Treasury pursuant to the provisions
of section ten-b, article twenty, chapter thirty-one of this code, those amounts received by the clerk
which are dedicated for deposit in the fund."
There being no further amendments, the bill was then ordered to third reading.
S. B. 736, Repealing superceded sections relating to proffers and conditions for final plat
approval;
on second reading, coming up in regular order, was read a second time and ordered to third
reading.
S. B. 741, Exempting farming equipment and livestock from personal property tax; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on
page five, section nine, line eight-six by striking out the entire
subsection number (28) following the number and inserting in lieu thereof the following:
" Personal property, including livestock, employed exclusively in agriculture, as defined in article ten,
section one of the West Virginia Constitution, the products of agriculture, and while owned by the producer."
There being no further amendments, the bill was then ordered third reading.
S. B. 749, Authorizing change in official name of public service district in certain cases
; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 427, Relating to health maintenance organizations
; on second reading, having been
postponed until this time, was read a second time.
An amendment, recommended by the Committee on Health and Human Resources, was
reported by the Clerk and adopted, amending the bill on
page four, section three-a, line thirty-two,
following the number (4) by adding the following: "For health maintenance organizations that have
been operating in this state for at least three years, a" and by striking the A.
The bill was then ordered to third reading.
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:
S. B. 674, on 2nd reading, Consent Calendar, to the House Calendar, by Mr. Speaker, Mr.
Kiss.
S. B. 674, Relating to textbook sales at public institutions of higher education; on second
reading, having been postponed until this time, was read a second time and advanced to third reading
with the amendments pending.
Special Calendar
Unfinished Business
S. C. R. 17, Requesting Division of Highways name Fort Hill Bridge in Charleston "Eugene
A. Carter 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.
H. R. 34, Recognizing the month of April as Fair Housing Month; 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 and request concurrence therein.
H. C. R. 39, Requesting the West Virginia Division of Highways to name the bridge located
at U. S. Route 2 and Nine Mile Road in Cabell County, West Virginia, the "David Rickey Carson
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 and request concurrence therein.
H. C. R. 71, Amending the Joint Rules of the Senate and the House of Delegates by adding
thereto a new rule, designated Rule 30, Joint Committee on Technology; 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 and request concurrence therein.
H. C. R. 74, Requesting the Joint Committee on Government and Finance conduct a study
to determine the need for a Colon Cancer Detection and Prevention Board; 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 and request concurrence therein.
Com. Sub. for H. C. R. 85, Requesting the Joint Committee on Government and Finance to
study costs and benefits of full time in-school alternative education programs; 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 and request concurrence therein.
************************ ***********************
Action on Senate Messages
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2078, Requiring the spaying or neutering of certain dogs and cats.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section two, after line seventeen, by inserting a new subsection, designated
subsection (b), to read as follows:
"(b) Any agency as set forth in subsection (a) of this section which has written policy of not
permitting the adopted dog or cat from being released from the custody of the agency to the new
owner until the dog or cat has been spayed or neutered, does not have to comply with the provisions
of subdivision (3), subsection (a) of this section."
And,
By relettering the remaining subsection.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 446), and there were--yeas
94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Ashley, Lane, Louisos, Schoen and Sumner.
Absent And Not Voting: Wakim.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2078) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2150, Expanding the possible venues where a child neglect or abuse petition may be filed.
On motion of Delegate Staton, the bill was then laid over.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2449, Continuation of the West Virginia Board of Manufactured Housing Construction
and Safety.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§21-9-13. West Virginia Board of Manufactured Housing Construction and Safety continued.
Pursuant to the provisions of article ten, chapter four of this code, the West Virginia Board
of Manufactured Housing Construction and Safety shall continue to exist until the first day of July,
two thousand eleven, unless sooner terminated, continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 447), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2449) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 448), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2449) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2466, Eliminate provisions which created unlawful classifications based
on race and to update obsolete provisions.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
That §18-14-1 of the Code of West Virginia, 1931, as amended, be repealed; and that §18-5-
32 of said code be amended and reenacted, all to read as follows:
"ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-32. Assistant superintendents; directors and supervisors of instruction and other
educational activities.
(a) The county board, of education upon the recommendation of the county superintendent,
may employ an assistant whose term of employment shall be not less than one nor more than four
years: Provided, That such his or her term shall not extend beyond that of the incumbent county
superintendent.
(b) The board shall not employ more than one assistant for each two hundred teachers or major
fraction thereof. Provided, however, That in such districts in which assistants are employed and fifty
or more Negro teachers are employed therein, the board may employ one negro assistant
superintendent.
(c) The county board, upon the recommendation of the county superintendent, shall have
authority is authorized to employ such general and special supervisors or directors of instruction and
of such other educational activities as may be deemed considered necessary.
(d) The employment of the assistant superintendent shall be on a twelve-month basis. The period of employment for all others named herein shall be at the discretion of the county board.
(e) Rules and regulations for qualifications of assistant superintendents, and directors and
supervisors of instruction and of other educational activities shall be fixed by the State Board: of
Education Provided, however, That the qualifications required for any assistant superintendent shall
in no event be higher than those required for the county superintendent: Provided, further however,
That such the rules do not affect the status of any incumbent nor his or her right to succeed himself
or herself in his or her assigned position.
(f) The county board of education shall have the authority is authorized to reimburse such the
employees for their necessary traveling expenses upon presentation of a monthly, itemized, sworn
statement approved by the county superintendent.
(g) Any person employed under the foregoing provision of this section, provided he or she
holds a valid teacher's certificate, shall be given continuing contract status as a teacher and shall hold
such that status unless dismissed for statutory reasons.
The board may also cooperate with the extension division of the college of agriculture in
employing an agricultural club agent for the organization and direction of boys' and girls' agricultural
clubs.
(h) All acts or parts of acts inconsistent with this section are hereby repealed.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 449), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2466) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 448), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2449) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2534, Continuation of the Tourism Commission.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported to the Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§5B-2-13. Tourism Commission continued.
Pursuant to the provisions of article ten, chapter four of this code, the Tourism Commission
shall continue to exist until the first day of July, two thousand six, unless sooner terminated,
continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 450), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2534) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 451), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2534) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2570, Requiring banking institutions to post bond or other security for
the deposit of county, municipal or county board of education funds,
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk.
On page five, section two, line fifty-six, by striking out the words "may not be" and inserting
in lieu thereof the words "is not".
On page ten, section twenty-two-a, line fifty-seven, by striking out the words "may not be"
and inserting in lieu thereof the words "is not".
And,
On page thirteen, section six, line forty-seven, by striking out the words "may not be" and
inserting in lieu thereof the words "is not".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 452), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2570) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 2623, Continuation of the Public Land Corporation.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§20-1A-9. Public Land Corporation continued.
Pursuant to the provisions of article ten, chapter four of this code, the Public Land Corporation
shall continue to exist until the first day of July, two thousand six, unless sooner terminated,
continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
with amendment, as follows:
On page one, section nine, after the words "two thousand" by striking out the word "six" and
inserting in lieu thereof the word "nine".
The bill, as amended by the Senate, and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 453), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2623) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 454), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2623) 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.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2650, Relating to beef industry self-improvement assessment program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page twelve, by striking out all of section eleven and inserting in lieu thereof a new section
eleven, to read as follows:
"§19-2F-11. Continuation of program.
Pursuant to the provisions of article ten, chapter four of this code, the beef industry self-
improvement assessment program shall continue to exist until the first day of July, two thousand
eight, unless sooner terminated, continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 455), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2650) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 456), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2650) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from the Senate on yesterday, as to
H. B. 2777, Making technical changes concerning High-Tech research zones, parks and
technology centers and tax incentives relating thereto.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18B-13-1, §18B-13-2, §18B-13-3, §18B-13-4 and §18B-13-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 13. HIGHER EDUCATION -- INDUSTRY PARTNERSHIPS.
§18B-13-1. Legislative findings; intent; definition.
(a) Legislative findings -- The Legislature finds that a pressing need exists for collaborative
research and development between institutions of higher education and industry. This need also
extends to assisting companies to develop and adapt to new technology. A commitment by the state
to support cooperative university-industry partnerships between higher education and industry will
preserve preserves existing jobs and create creates new jobs; promote promotes development of
business enterprises and help helps them become competitive; and enable enables West Virginia to
achieve the goals of economic growth and full employment by revitalizing and diversifying the West
Virginia economy. Focused research and technical assistance efforts related to West Virginia industry
will speed advances such development, improve improves technology transfer, assist assists
companies in becoming growth leaders and link links basic research and technological developments
to economic advancement.
(b) Legislative intent -- It is the purpose intent of the Legislature to have as the state's goals
adopt the following as state goals to be reached through applied science and technology and
partnership programs:
(1) the movement of the state of Moving West Virginia into the forefront of science and technology; by the year two thousand
(2) the attraction of Attracting business, federal contracts and industry; and
(3) the creation of Creating jobs for the people of this state. through applied science and
technology and partnership programs.
(c) Definition -- As used in this article, 'Qualified business' means a business registered to
do business in this state which is engaged in science and technology related 'manufacturing' (as
defined in section three, article thirteen-s, chapter eleven of this code) or science and technology
related 'research and development' (as defined in section three, article thirteen-q, or section three,
article thirteen-r, chapter eleven of this code) within a research zone, park or technology center.
§18B-13-2. Higher education-industry collaboration and technical assistance.
Each governing board of a state institutions institution of higher education shall develop a plan
to engage in collaborative projects designed to assist business to adapt or develop new technology
under this article.
§18B-13-3. Powers and duties.
(a) The West Virginia state Development council Office, in consultation with the higher
education governing boards Commission, is hereby authorized and directed to develop a strategic
comprehensive plan and grant program to attract new science and high technology industries, to retain
and expand current state industries through technology and other processes and to increase research
grants, contracts, matching funds and procurement arrangements from the federal government, private
industry and other agencies. Such The initial, and annually updated, strategic comprehensive plan
and each annual plan update shall be developed and annually filed with the Governor and Legislature.
(b) The West Virginia state Development council Office, in consultation with the higher
education governing boards Commission, shall review the work and projects undertaken by the Center
of Regional Progress, the Center for Economic Research, the Institute for International Trade
Development and the West Virginia Foundation for Science and Technology.
§18B-13-4. High-Tech research zones, parks and technology centers; tax incentives.
(a) For the purposes of this subsection, a "qualified state institution of higher education" is
a state institution of higher education meeting the qualifications to be established by the West
Virginia Development Office. The state development council West Virginia Development Office
shall work with the county commissions, the municipalities and local development authorities where
state colleges and universities qualified state institutions of higher education are located and shall
develop a plan and grant program for the establishment and operation of qualifying High-Tech 2000
research zones, parks and technology centers on or near the campuses of selected universities and
colleges qualified state institutions of higher education to attract local business and industry engaged
in science and technology related research and development. The state development council shall
coordinate the development of such plan and grant program which shall include qualifications for
eligible that are to be met in order to receive approval by the West Virginia Development Office as
a research zone, park or technology center or as a qualified business. Those High-Tech 2000 research
zones, parks and research centers and which qualifications shall require a minimum partnership
commitment from one or more qualified businesses in the private sector either in the construction,
operation or location of the research zone, park or technology center. The West Virginia
Development Office shall designate the particular geographic area comprising the research zone, park
or technology center. research parks or zones or technology centers; and the
The West Virginia Economic Development Authority is authorized shall have authority to
enter into agreements with state institutions of higher education, private developers or other interested
businesses or persons to acquire, finance, construct, operate, own, lease or otherwise manage any
research zone, park or zone technology center and to collect rentals or other forms of payment for the
operation of the research zones, parks or zones or technology centers. The West Virginia Economic
Development Authority is hereby authorized either singularly singly or in conjunction with any county
commission, municipality or local development authority, to issue special High-Tech 2000 bonds for
the purpose of this section, including, but not limited to, special project revenue bonds and special
user bonds limited to the actual cost of construction and start-up of any qualifying and approved research park or zone zones, parks or technology centers, and improvements necessary thereto,
pursuant to article twelve-b, chapter eighteen of this code.
(b) Notwithstanding any other provision of this code to the contrary, relating to any other
exemptions or credits to which any business may be entitled under this code, the following
exemptions shall only apply to qualified approved High-Tech 2000 research park or zone or
technology center:
(1) The enterprise zone tax exemptions as provided in section five, article two-b, chapter five-
b of this code;
(2) A tax credit for qualified business, in the amount of the workers' compensation premium
paid in accordance with article two, chapter twenty-three of this code, which credit shall be credited
against any corporate net income tax or personal income tax of the qualified business or liability of
the owners of the qualified business which is a proprietorship or a partnership;
(3) The deferral for qualified business of all state corporate net income tax, business and
occupation tax, telecommunications tax, severance tax, business franchise tax or other state income
tax liability for the start-up period of the business not to exceed three years, and qualified business
shall be entitled to an exemption from any such deferred tax if such business both employs at least
seven persons on a full-time basis as of the due date of the deferred tax liability, and the qualified
business maintains an average employment of at least seven full-time employees over the last two
years of the three year start-up period.
Notwithstanding any other provision herein to the contrary, the amount of total credits and
deferrals allowable under this section or section five, article two-b, chapter five-b of this code, shall
not exceed two and one-half million dollars in any one fiscal year for all eligible businesses:
Provided, That the credits allowed by this section are nonrefundable so that a taxpayer shall not claim
a total credit amount that reduces the taxpayer's tax liability to less than zero.
(b) For taxable years beginning on and after the first day of January, two thousand five, any
qualified business approved by the West Virginia Development Office on or after the first day of January, two thousand four, and located in a geographic area designated as a High-Tech research
zone, park or technology center, shall be considered to be:
(1) A business eligible for economic opportunity tax credit entitlement pursuant to section
nineteen, article thirteen-q, chapter eleven of the code, and entitled to the twenty percent new jobs
percentage under section nine of that article, if it creates at least seven new jobs in a research zone,
park or technology center;
(2) An eligible taxpayer for purposes of the strategic research and development credit provided
under article thirteen-r, chapter eleven of the code;
(3) An industrial taxpayer for purposes of the manufacturing investment tax credit provided
under article thirteen-s, chapter eleven of the code if it is primarily engaged in manufacturing related
to research and development; and
(4) Entitled to priority for approval of refundable credit for the small qualified research and
development company credit under section six, article thirteen-r, chapter eleven of the code ahead of
eligible taxpayers that are not qualified businesses under section one of this article: Provided, That
the qualified business otherwise meets the requirements for those credits.
(c) Notwithstanding any other provision herein to the contrary, the amount of total credits and
deferrals allowable under this section, shall not exceed two and one-half million dollars in any one
fiscal year for all eligible businesses: Provided, That, except for the credit allowed under subdivision
(4) of subsection (b), the credits allowed by this section are nonrefundable so that a taxpayer shall not
claim a total credit amount that reduces the taxpayer's tax liability to less than zero.
§18B-13-5. Use of state property and equipment; faculty.
(a) The governing boards are authorized to provide for the low cost and economical use and
sharing of state property and equipment, including computers, research labs and other scientific and
necessary equipment to assist any qualified business within an approved research park or zone or
technology center. The governing boards Commission shall approve a schedule of nominal or
reduced-cost reimbursements to the state for such use.
(b) The governing boards shall develop and provide for a program of release time, sabbaticals
or other forms of faculty involvement or participation with any qualifying business.
(c) The Legislature finds that cooperation, communication and coordination are integral
components of higher education's involvement in economic development. In order to proceed in a
manner that is cost effective and time efficient, it shall be is the duty of the governing boards
Commission to review and coordinate such aspects of the programs administered by the governing
boards. Such The review and coordination shall may not operate so as to adversely affect adversely
sources of funding nor shall it affect or any statutory characterization of any program as an
independent entity. The governing boards Commission shall report on an annual basis annually to
the Legislature and the Governor. The report shall contain the following information:
(1) The number of seminars and workshops conducted;
(2) The subject matter addressed in each seminar and workshop;
(3) The number of feasibility studies conducted and the subject matter contained in each study;
(4) An accounting of the cost of all travel expenses, seminars, workshops and feasibility
studies; and
(5) The extent to which the authority provided for in subsection (b) of this section has been
exercised, with specificity as to stating specifically the names of the institution and faculty member
institutions and faculty members involved in the program."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
with an amendment.
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 457), and there were--yeas
83, nays 17, absent and not voting none, with the nays being as follows:
Nays: Ashley, Blair, Border, Carmichael, Duke, Evans, Frich, Hall, Lane, Roberts, Rowan,
Schoen, Sobonya, Stevens,Deb, Sumner, Trump and Walters.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2777) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 458), and there were--yeas 98, nays
1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Duke.
Absent And Not Voting: Caputo.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2777) 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.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2789, Relating to the assessment date for bank holding companies.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §18B-13-1, §18B-13-2, §18B-13-3, §18B-13-4 and §18B-13-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 13. HIGHER EDUCATION -- INDUSTRY PARTNERSHIPS.
§18B-13-1. Legislative findings; intent; definition.
(a) Legislative findings -- The Legislature finds that a pressing need exists for collaborative
research and development between institutions of higher education and industry. This need also
extends to assisting companies to develop and adapt to new technology. A commitment by the state
to support cooperative university-industry partnerships between higher education and industry will preserve preserves existing jobs and create creates new jobs; promote promotes development of
business enterprises and help helps them become competitive; and enable enables West Virginia to
achieve the goals of economic growth and full employment by revitalizing and diversifying the West
Virginia economy. Focused research and technical assistance efforts related to West Virginia industry
will speed advances such development, improve improves technology transfer, assist assists
companies in becoming growth leaders and link links basic research and technological developments
to economic advancement.
(b) Legislative intent -- It is the purpose intent of the Legislature to have as the state's goals
(1) the movement of the state of Moving West Virginia into the forefront of science and
technology; by the year two thousand
(2) the attraction of Attracting business, federal contracts and industry; and
(3) the creation of Creating jobs for the people of this state. through applied science and
technology and partnership programs.
(c) Definition -- As used in this article, 'Qualified business' means a business registered to
do business in this state which is engaged in science and technology related 'manufacturing' (as
defined in section three, article thirteen-s, chapter eleven of this code) or science and technology
related "research and development" (as defined in section three, article thirteen-q, or section three,
article thirteen-r, chapter eleven of this code) within a research zone, park or technology center.
§18B-13-2. Higher education-industry collaboration and technical assistance.
Each governing board of a state institutions institution of higher education shall develop a plan
to engage in collaborative projects designed to assist business to adapt or develop new technology
under this article.
§18B-13-3. Powers and duties.
(a) The West Virginia state Development council Office, in consultation with the higher education governing boards Commission, is hereby authorized and directed to develop a strategic
comprehensive plan and grant program to attract new science and high technology industries, to retain
and expand current state industries through technology and other processes and to increase research
grants, contracts, matching funds and procurement arrangements from the federal government, private
industry and other agencies. Such The initial, and annually updated, strategic comprehensive plan
and each annual plan update shall be developed and annually filed with the Governor and Legislature.
(b) The West Virginia state Development council Office, in consultation with the higher
education governing boards Commission, shall review the work and projects undertaken by the Center
of Regional Progress, the Center for Economic Research, the Institute for International Trade
Development and the West Virginia Foundation for Science and Technology.
§18B-13-4. High-Tech research zones, parks and technology centers; tax incentives.
(a) For the purposes of this subsection, a 'qualified state institution of higher education' is a
state institution of higher education meeting the qualifications to be established by the West Virginia
Development Office. The state development council West Virginia Development Office shall work
with the county commissions, the municipalities and local development authorities where state
colleges and universities qualified state institutions of higher education are located and shall develop
a plan and grant program for the establishment and operation of qualifying High-Tech 2000 research
zones, parks and technology centers on or near the campuses of selected universities and colleges
qualified state institutions of higher education to attract local business and industry engaged in science
and technology related research and development. The state development council shall coordinate
the development of such plan and grant program which shall include qualifications for eligible that
are to be met in order to receive approval by the West Virginia Development Office as a research
zone, park or technology center or as a qualified business. Those High-Tech 2000 research zones,
parks and research centers and which qualifications shall require a minimum partnership commitment
from one or more qualified businesses in the private sector either in the construction, operation or
location of the research zone, park or technology center. The West Virginia Development Office shall designate the particular geographic area comprising the research zone, park or technology center.
research parks or zones or technology centers; and the
The West Virginia Economic Development Authority is authorized shall have authority to
enter into agreements with state institutions of higher education, private developers or other interested
businesses or persons to acquire, finance, construct, operate, own, lease or otherwise manage any
research zone, park or zone technology center and to collect rentals or other forms of payment for the
operation of the research zones, parks or zones or technology centers. The West Virginia Economic
Development Authority is hereby authorized either singularly singly or in conjunction with any county
commission, municipality or local development authority, to issue special High-Tech 2000 bonds for
the purpose of this section, including, but not limited to, special project revenue bonds and special
user bonds limited to the actual cost of construction and start-up of any qualifying and approved
research park or zone zones, parks or technology centers, and improvements necessary thereto,
pursuant to article twelve-b, chapter eighteen of this code.
(b) Notwithstanding any other provision of this code to the contrary, relating to any other
exemptions or credits to which any business may be entitled under this code, the following
exemptions shall only apply to qualified approved High-Tech 2000 research park or zone or
technology center:
(1) The enterprise zone tax exemptions as provided in section five, article two-b, chapter five-
b of this code;
(2) A tax credit for qualified business, in the amount of the workers' compensation premium
paid in accordance with article two, chapter twenty-three of this code, which credit shall be credited
against any corporate net income tax or personal income tax of the qualified business or liability of
the owners of the qualified business which is a proprietorship or a partnership;
(3) The deferral for qualified business of all state corporate net income tax, business and
occupation tax, telecommunications tax, severance tax, business franchise tax or other state income
tax liability for the start-up period of the business not to exceed three years, and qualified business shall be entitled to an exemption from any such deferred tax if such business both employs at least
seven persons on a full-time basis as of the due date of the deferred tax liability, and the qualified
business maintains an average employment of at least seven full-time employees over the last two
years of the three year start-up period.
Notwithstanding any other provision herein to the contrary, the amount of total credits and
deferrals allowable under this section or section five, article two-b, chapter five-b of this code, shall
not exceed two and one-half million dollars in any one fiscal year for all eligible businesses:
Provided, That the credits allowed by this section are nonrefundable so that a taxpayer shall not claim
a total credit amount that reduces the taxpayer's tax liability to less than zero.
(b) For taxable years beginning on and after the first day of January, two thousand five, any
qualified business approved by the West Virginia Development Office on or after the first day of
January, two thousand four, and located in a geographic area designated as a High-Tech research
zone, park or technology center, shall be considered to be:
(1) A business eligible for economic opportunity tax credit entitlement pursuant to section
nineteen, article thirteen-q, chapter eleven of the code, and entitled to the twenty percent new jobs
percentage under section nine of that article, if it creates at least seven new jobs in a research zone,
park or technology center;
(2) An eligible taxpayer for purposes of the strategic research and development credit provided
under article thirteen-r, chapter eleven of the code;
(3) An industrial taxpayer for purposes of the manufacturing investment tax credit provided
under article thirteen-s, chapter eleven of the code if it is primarily engaged in manufacturing related
to research and development; and
(4) Entitled to priority for approval of refundable credit for the small qualified research and
development company credit under section six, article thirteen-r, chapter eleven of the code ahead of
eligible taxpayers that are not qualified businesses under section one of this article: Provided, That
the qualified business otherwise meets the requirements for those credits.
(c) Notwithstanding any other provision herein to the contrary, the amount of total credits and
deferrals allowable under this section, shall not exceed two and one-half million dollars in any one
fiscal year for all eligible businesses: Provided, That, except for the credit allowed under subdivision
(4) of subsection (b), the credits allowed by this section are nonrefundable so that a taxpayer shall not
claim a total credit amount that reduces the taxpayer's tax liability to less than zero.
§18B-13-5. Use of state property and equipment; faculty.
(a) The governing boards are authorized to provide for the low cost and economical use and
sharing of state property and equipment, including computers, research labs and other scientific and
necessary equipment to assist any qualified business within an approved research park or zone or
technology center. The governing boards Commission shall approve a schedule of nominal or
reduced-cost reimbursements to the state for such use.
(b) The governing boards shall develop and provide for a program of release time, sabbaticals
or other forms of faculty involvement or participation with any qualifying business.
(c) The Legislature finds that cooperation, communication and coordination are integral
components of higher education's involvement in economic development. In order to proceed in a
manner that is cost effective and time efficient, it shall be is the duty of the governing boards
Commission to review and coordinate such aspects of the programs administered by the governing
boards. Such The review and coordination shall may not operate so as to adversely affect adversely
sources of funding nor shall it affect or any statutory characterization of any program as an
independent entity. The governing boards Commission shall report on an annual basis annually to
the Legislature and the Governor. The report shall contain the following information:
(1) The number of seminars and workshops conducted;
(2) The subject matter addressed in each seminar and workshop;
(3) The number of feasibility studies conducted and the subject matter contained in each study;
(4) An accounting of the cost of all travel expenses, seminars, workshops and feasibility
studies; and
(5) The extent to which the authority provided for in subsection (b) of this section has been
exercised, with specificity as to stating specifically the names of the institution and faculty member
institutions and faculty members involved in the program."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 459), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2789) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2837, Prescribing personal finance instruction in secondary schools by the State Board
of Education.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-7c. Program in personal finance.
(a) The Legislature finds and declares that persons with an understanding of personal finance
are better prepared to manage their money and that providing a personal finance program in secondary
schools in West Virginia will prepare students to handle their finances.
(b) To provide students a basic understanding of personal finance, the State Board shall
develop a program of instruction on personal finance which may be integrated into the curriculum of an appropriate existing course or courses for students in secondary schools."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 460), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2837) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
Com. Sub. for H. B. 2950, Relating to requiring a paper copy of a voter's votes when using
an electronic system to vote if an election is contested or for a random count of precincts.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page sixteen, after section nine-a, by inserting a new section, designated section nine-b,
to read as follows:
"§3-4A-9b. Authorization for precinct ballot-scanning device; minimum requirements.
(a) For purposes of this section, "precinct ballot-scanning device" means a device used by the
voter at the precinct on election day or during early voting for the purpose of scanning the voter's
ballot after the ballot has been voted but prior to depositing the ballot into the ballot box.
(b) The precinct ballot-scanning device may be used for the purpose of scanning optically
readable ballots cast in all primary, general and special elections.
(c) The precinct ballot-scanning device, firmware and programming software must be certified
by an independent testing authority, according to current federal standards and be approved by the
State Election Commission. No election official may enter into any contract to purchase, rent, lease or otherwise acquire any precinct ballot-scanning device, firmware or software not approved by the
State Election Commission.
(d) The precinct ballot-scanning device shall additionally:
(1) Alert the voter if the voter has made more ballot selections than the law allows for an
individual office or ballot issue;
(2) Alert the voter if the voter has made fewer ballot selections than the law allows for an
individual office or ballot issue;
(3) Provide voters with an opportunity to change ballot selections, or correct errors, before the
ballot is marked for voting, including the opportunity to correct the error through the issuance of a
replacement ballot if the voter was otherwise unable to change the ballot or correct the error;
(4) Verify that an optical scan ballot inserted into the device at the start of voting is blank; and
(5) Verify that a voted optical scan ballot is voted as the voter intended.
(e) The precinct ballot-scanning device shall not be used for tabulating election results."
And,
On page two, by amending the enacting section to read as follows:
That §3-4A-9 and §3-4A-28 of the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto two new sections, designated §3-4A-9a
and §3-4A-9b, all to read as follows:"
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment
with amendment, as follows:
On page two, section nine-b, line five, after the semicolon by inserting the word "and".
On page two, section nine-b, line six by striking out the remainder of the subsection (d) and
inserting in lieu thereof the following language:
"(3) Allow voters an opportunity to change ballot selections, or correct errors, including the
opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise
unable to change the ballot or correct the error."
And,
On page two, section nine-b, after subsection (e), by adding thereto a new subsection,
designated subsection (f), to read as follows:
"(f) The Secretary of State is hereby directed to propose rules and emergency rules for
legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this
code in accordance with the provisions of this section."
The bill, as amended by the Senate and as further amended by the House, was then put upon
its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 461), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2950) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2958, Continuing the Public Employees Insurance Agency Finance Board.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§5-16-4a. Public Employees Insurance Agency Finance Board continued.
Pursuant to the provisions of article ten, chapter four of this code, the Public Employees
Insurance Agency Finance Board shall continue to exist until the first day of July, two thousand eight,
unless sooner terminated, continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 462), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2958) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 463), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2958) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 3046, Continuation of the Board of Veterinary Medicine.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the article heading and inserting in lieu thereof
the following:
"§30-10-20. West Virginia Board of Veterinary Medicine continued.
Pursuant to the provisions of article ten, chapter four of this code, the West Virginia Board
of Veterinary Medicine shall continue to exist until the first day of July, two thousand seven, unless
sooner terminated, continued or reestablished."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 464), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3046) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 465), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 3046) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Third Reading
Com. Sub. for S. B. 107, Relating to hunting with dogs on land of another without
permission; 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. 466),
and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Porter.
Absent And Not Voting: Yost.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 107) 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 S. B. 107 -- "A Bill to amend and reenact §20-2-7 of the code of West
Virginia, 1931, as amended, relating to hunting with dogs; providing that persons may not be guilty
of hunting without permission, under certain circumstances, when the person's dog pursues an animal
or wild bird onto another person's land without the person's direction or encouragement."
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 S. B. 154, Relating to beneficial use of water treatment plant sludge; 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. 467),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Ellem and Stevens,Deb.
Absent And Not Voting: Leggett.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 154) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 214, Continuing Acupuncture Board; 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. 468),
and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Trump.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 214) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 469), and there were--yeas 99, nays
1, absent and not voting none, with the nays being as follows:
Nays: Hall.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 214) 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.
S. B. 215, Continuing Board of Accountancy; 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. 470),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 215) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 471), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 215) 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 S. B. 414, Relating to child passenger safety and booster seats; 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. 472),
and there were--yeas 93, nays 7, absent and not voting none, with the nays being as follows:
Nays: Barker, Butcher, Eldridge, Ferrell, Hrutkay, Hunt and Porter.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 414) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 513, Relating to tax credits for qualified centers for economic development and
technology advancement; 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. 473),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 513) passed.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the title to read as follows:
S. B. 513 -- "A Bill to amend and reenact §5E-1-8 of the Code of West Virginia, 1931, as
amended, relating to eliminating the total tax credits available under the Capital Company Act during
the fiscal year beginning on the first day of July, two thousand five."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 582, Granting concurrent jurisdiction to family court and circuit court to set support in
abuse and neglect cases; 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. 474),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 582) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 616, Relating to priority of legislative business for members and certain employees of
Legislature; 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. 475),
and there were--yeas 91, nays 9, absent and not voting none, with the nays being as follows:
Nays: Armstead, Border, Carmichael, Frich, Hamilton, Leggett, Sobonya, Stevens,Deb and
Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 616) passed.
On motion of Delegate Amores, the title of the bill was amended to read as follows:
S. B. 616-- "A Bill to amend §4-1-17 of the Code of West Virginia, 1931, as amended; and
to further amend said code by adding thereto a new article, designated §4-1A-1, §4-1A-2, §4-1A-3,
§4-1A-4, §4-1A-5, §4-1A-6, §4-1A-7, §4-1A-8, §4-1A-9, §4-1A-10, §4-1A-11, §4-1A-12, §4-1A-13,
§4-1A-14, §4-1A-15, and §4-1A-16, all relating to legislative priorities and immunities under statute,
common law and constitutional law."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 476), and there were--yeas 99, nays
1, absent and not voting none, with the nays being as follows:
Nays: Frich.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 616) 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.
S. B. 639, Defining "electronic postmark"; 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. 477),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 639) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 478), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 639) 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.
S. B. 644, Defining certain terms used in consumers sales and service tax; on third reading,
coming up in regular order, was, on motion of Delegate Staton, laid over one day.
S. B. 650, Relating to small claims hearings by Office of Tax Appeals; 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. 479),
and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 650) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 664, Providing county clerk assist Secretary of State in determining validity of
nominating petitions; on third reading, coming up in regular order, was, on motion of Delegate Staton,
laid over one day.
S. B. 667, Relating to motor fuel excise tax; 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. 480),
and there were--yeas 98, nays 2, absent and not voting none, with the nays being as follows:
Nays: Eldridge and Porter.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 667) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 684, Relating to imposition of tax on privilege of severing natural gas or oil; on third
reading, coming up in regular order, was, on motion of Delegate Staton, laid over one day.
S. B. 731, Making supplementary appropriation of federal funds to Department of
Transportation, Division of Public Transit; on third reading, coming up in regular order, was read a
third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 481), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 731) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 482), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 731) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 732, Making supplementary appropriation from state fund to Department of
Transportation, Aeronautics Commission; on third reading, coming up in regular order, was read a
third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 483), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 732) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 484), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 732) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 733, Making supplementary appropriation of federal funds to Department of
Transportation, Aeronautics Commission; on third reading, coming up in regular order, was read a
third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 485), 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: Leggett.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 733) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 486), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 733) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 734, Making supplementary appropriation of federal funds to Miscellaneous Boards and
Commissions, State Mapping and Addressing Board; on third reading, coming up in regular order,
was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 487), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 734) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 488), and there were--yeas 100, nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 734) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 739, Making supplementary appropriation to Department of Health and Human
Resources, Division of Health, Hepatitis B Vaccine; on third reading, coming up in regular order, was
read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 489), and there were--yeas
100, nays none, absent and not voting none.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 739) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 490), and there were--yeas 100, nays
none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 739) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
S. B. 744, Clarifying criteria for employee to sustain lawsuit for intentional injury; 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. 491),
and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
Nays: Eldridge, Houston, Hrutkay and Martin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 744) passed.
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 492), and there were--yeas 98, nays
2, absent and not voting none, with the nays being as follows:
Nays: Hrutkay and Martin.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 744) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Second Reading
Com. Sub. for S. B. 30, Discontinuing use of prior approval system of insurance rate and
form filing; other provisions; on second reading, coming up in regular order, was read a second time
and advanced to third reading with the amendments pending.
Com. Sub. for S. B. 94, Providing additional flexibility for school instructional support and
enhancement days; 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 one, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §18-5-45 of the Code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-45. School calendar.
(a) As used in this section, the following terms have the following meanings:
(1) 'Instructional day' means a day within the instructional term which meets the following
criteria:
(A) Instruction is offered to students for at least the minimum amounts of time provided by
State Board rule;
(B) Instructional time is used for instruction, cocurricular activities and approved
extracurricular activities and, pursuant to the provisions of subdivision (12), subsection (b), section
five, article five-a of this chapter, faculty senates; and
(C) Such other criteria as the State Board determines appropriate.
(2) 'Bank time' 'Accrued instructional time' means instructional time accruing during the
instructional term from time added to the instructional day beyond the time required by state board
rule for an instructional day. Accrued instructional time may which may be accumulated and used
in larger blocks of time during the school year for instructional or noninstructional activities as further
defined by the State Board.
(3) 'Extracurricular activities' are activities under the supervision of the school such as
athletics, noninstructional assemblies, social programs, entertainment and other similar activities as
further defined by the State Board.
(4) 'Cocurricular activities' are activities that are closely related to identifiable academic
programs or areas of study that serve to complement academic curricula as further defined by the
State Board.
(b) Findings. -
(1) The primary purpose of the school system is to provide instruction for students.
(2) The school calendar, as defined in this section, is designed to define the school term both
for employees and for instruction.
(3) The school calendar traditionally has provided for one hundred eighty actual days of
instruction but numerous circumstances have combined to cause the actual number of instructional
days to be less than one hundred eighty.
(4) The quality and amount of instruction offered during the instructional term is affected by
the extracurricular and cocurricular activities allowed to occur during scheduled instructional time.
(5) Within reasonable guidelines, the school calendar should be designed at least to guarantee
that one hundred eighty actual days of instruction are possible.
(c) The county board shall provide a school term for its schools that contains the following:
(1) An employment term for teachers of no less than two hundred days, exclusive of Saturdays
and Sundays; and
(2) Within the employment term, an instructional term for students of no less than one
hundred eighty separate instructional days.
(d) The instructional term for students shall include one instructional day in each of the
months of October, December, February, April and June which is an instructional support and
enhancement day scheduled by the board to include both instructional activities for students and
professional activities for teachers to improve student instruction. Instructional support and
enhancement days are subject to the following provisions:
(1) Two hours of the instructional support and enhancement day shall be used for instructional
activities for students. The instructional activities for students are subject to the following provisions:
(A) The instructional activities for students require the direct supervision or involvement by
teachers;
(B) The instructional activities for students shall be limited to two hours;
(C) The instructional activities for students shall be determined and scheduled at the local
school level;
(D) The instructional activities for students may include, but are not limited to, both in-school
and outside of school activities such as student mentoring, tutoring, counseling, student research and
other projects or activities of an instructional nature, community service, career exploration, parent
and teacher conferences, visits to the homes of students, college and financial aid workshops and
college visits; The instructional activities for students shall be determined and scheduled at the local
school level. The first two hours of the instructional day shall be used for instructional activities for
students which require the direct supervision or involvement by teachers, and such activities shall be
limited to two hours.
(E) To ensure that the students who attend are properly supervised, the instructional activities for students shall be arranged by appointment with the individual school through the principal, a
teacher or other professional personnel at the school; and
(F) The Each school shall establish a policy relating to the use of the two-hour block
scheduled for instructional activities for students;
(2) The instructional support and enhancement day shall include a two-hour block of time for
professional activities for teachers during which the faculty senate shall have the opportunity to meet;
The professional activities for teachers shall include a two-hour block of time immediately following
the first two hours of instructional activities for students during which the faculty senate shall have
the opportunity to meet.
(3) Any time not used by the faculty senate and the remainder of the school day, All time
remaining in the school day after meeting the requirements of subdivisions (1) and (2) of this
subsection, not including the duty-free lunch period, shall be used for other professional activities for
teachers to improve student instruction which may include, but are not limited to, professional staff
development, curriculum team meetings, individualized education plan meetings and other meetings
between teachers, principals, aides and paraprofessionals to improve student instruction as determined
and scheduled at the local school level;
(4) Notwithstanding any other provision of law or policy to the contrary, the presence of any
specific number of students in attendance at the school for any specific period of time shall not be
required on instructional support and enhancement days and the transportation of students to the
school shall not be required;
(5) Instructional support and enhancement days are also a scheduled work day for all service
personnel and shall be used for training or other tasks related to their job classification if their normal
duties are not required; and
(6) Nothing in this section may be construed to require that the instructional activities for
students, faculty senate meetings and other professional activities for teachers be scheduled in any
certain order.
(e) The instructional term shall commence no earlier than the twenty-sixth day of August and
terminate no later than the eighth day of June.
(f) Noninstructional days shall total twenty and shall be comprised of the following:
(1) Seven holidays as specified in section two, article five, chapter eighteen-a of this code;
(2) Election day as specified in section two, article five, chapter eighteen-a of this code;
(3) Six days to be designated by the county board to be used by the employees outside the
school environment; and
(4) Six days to be designated by the county board for any of the following purposes:
(A) Curriculum development;
(B) Preparation for opening and closing school;
(C) Professional development;
(D) Teacher-pupil-parent conferences;
(E) Professional meetings; and
(F) Making up days when instruction was scheduled but not conducted.
(g) Three of the days described in subdivision (4), subsection (f) of this section shall be
scheduled prior to the twenty-sixth day of August for the purposes of preparing for the opening of
school and staff development.
(h) At least one of the days described in subdivision (4), subsection (f) of this section shall be
scheduled after the eighth day of June for the purpose of preparing for the closing of school. If one
hundred eighty separate instruction days occur prior to the eighth day of June, this day may be
scheduled on or before the eighth day of June.
(i) At least four of the days described in subdivision (3), subsection (f) of this section shall be
scheduled after the first day of March.
(j) At least two of the days described in subdivision (4), subsection (f) of this section will be
scheduled for professional development. The professional development conducted on these days will
be consistent with the goals established by the state board pursuant to the provisions of section twenty-three-a, article two of this chapter.
(k) Subject to the provisions of subsection (h) of this section, all noninstructional days will
be scheduled prior to the eighth day of June.
(l) Except as otherwise provided in this subsection, the The State Board may not schedule the
primary statewide assessment program prior to the fifteenth day of May of the instructional year
unless the State Board determines that the nature of the test mandates an earlier testing date. For the
school year beginning two thousand three only, the state board may not schedule the primary
statewide assessment program prior to the fifteenth day of April of the instructional year.
(m) If, on or after the first day of March, the county board determines that it is not possible
to complete one hundred eighty separate days of instruction, the county board shall schedule
instruction on any available noninstructional day, regardless of the purpose for which the day
originally was scheduled, and the day will be used for instruction, subject to the following:
(1) Provided, That The noninstructional days scheduled for professional development shall
be the last available noninstructional days to be rescheduled as instructional days;
(2) Provided, however, That On or after the first day of March, the county board also may
require additional minutes of instruction in the school day to make up for lost instructional days in
excess of the days available through rescheduling and, if in its judgment it is reasonable and necessary
to improve student performance, to avoid scheduling instruction on noninstructional days previously
scheduled for professional development; and
(3) The provisions of this subsection do not apply to: (1) Holidays; and (2) election day.
(n) The following applies to bank accrued instructional time:
(1) Except as provided in subsection (m) of this section, bank accrued instructional time may
not be used to avoid one hundred eighty separate days of instruction;
(2) Bank Accrued instructional time may not be used to lengthen the time provided in law for
faculty senates;
(3) The use of bank accrued instructional time for extracurricular activities will be limited by the state board; and
(4) Accrued instructional time may be used by schools and counties to provide additional time
for professional staff development and continuing education as may be needed to improve student
performance and meet the requirements of the federal mandates affecting elementary and secondary
education. The amount of accrued instructional time used for this purpose may not exceed three
instructional days; and
(4) Such (5) Other requirements or restrictions as the State Board may provide in the rule
required to be promulgated by this section.
(o) The following applies to cocurricular activities:
(1) The State Board shall determine what activities may be considered cocurricular;
(2) The State Board shall determine the amount of instructional time that may be consumed
by cocurricular activities; and
(3) Such Other requirements or restrictions as the State Board may provide in the rule required
to be promulgated by this section.
(p) The following applies to extracurricular activities:
(1) Except as provided by subdivision (3) of this subsection, extracurricular activities may not
be scheduled during instructional time;
(2) The use of bank accrued instructional time for extracurricular activities will be limited by
the State Board; and
(3) The State Board shall provide for the attendance by students of certain activities sanctioned
by the Secondary schools School Activities Commission when those activities are related to statewide
tournaments or playoffs or are programs required for Secondary schools School Activities
Commission approval.
(q) Noninstructional interruptions to the instructional day shall be minimized to allow the
classroom teacher to teach.
(r) Nothing in this section prohibits establishing year-round schools in accordance with rules to be established by the State Board.
(s) Prior to implementing the school calendar, the county board shall secure approval of its
proposed calendar from the State Board or, if so designated by the State Board, from the State
Superintendent.
(t) The county board may contract with all or part of the personnel for a longer term.
(u) The minimum instructional term may be decreased by order of the state superintendent in
any county declared a federal disaster area and where the event causing the declaration is substantially
related to a reduction of instructional days.
(v) Where the employment term overlaps a teacher's or service personnel's participation in a
summer institute or institution of higher education for the purpose of advancement or professional
growth, the teacher or service personnel may substitute, with the approval of the county
superintendent, the participation for up to five of the noninstructional days of the employment term.
(w) The State Board shall promulgate a rule in accordance with the provisions of article three-
b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section."
The bill was then ordered to third reading.
Com. Sub. for S. B. 191, Relating to implementation of modified mental hygiene procedures;
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 two, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for certain medication
dependent persons with prior hospitalizations or convictions; to institute
modified mental hygiene procedures; procedures; forms.
(a) The Supreme Court of Appeals shall, in consultation with the Secretary of the Department
of Health and Human Resources and local mental health services consumers and providers, implement in at least four and no more than six judicial circuits, beginning on the first day of July,
two thousand six, modified mental hygiene procedures that are consistent with the requirements set
forth in this section. The judicial circuits selected for implementing the modified procedures shall be
circuits in which the Supreme Court of Appeals determines, after consultation with the Secretary of
the Department of Health and Human Resources and local mental health consumers and service
providers, that adequate resources will be available to implement the modified procedures. The
Secretary of the Department of Health and Human Resources, after consultation with the Supreme
Court of Appeals and local mental health services consumers and service providers, shall prescribe
appropriate forms to implement the modified procedures and shall annually prepare a report on the
use of the modified procedures and transmit the report to the Legislature on or before the last day of
each calendar year. The Supreme Court of Appeals may, after consultation with the Secretary of the
Department of Health and Human Resources and local mental health services consumers and
providers during the pilot program period, further modify any specific modified procedures that are
implemented: Provided, That the modified procedures must be consistent with the requirements of
this chapter and this section. If the Secretary of the Department of Health and Human Resources
determines that the use of any modified procedure in one or more judicial circuits is placing an
unacceptable additional burden upon state mental health resources, the Supreme Court of Appeals
shall, in consultation with the Secretary, modify the procedures used in such a fashion as will address
the concerns of the Secretary, consistent with the requirements of this chapter. The provisions of this
section and the modified procedures thereby authorized shall cease to have any force and effect on
the thirtieth day of June, two thousand ten, unless extended by an Act of the Legislature prior to that
date.
(b) (1) The modified procedures shall authorize that a verified petition seeking a treatment
compliance order may be filed by any person alleging:
(A) That an individual, on two or more occasions within a twenty-four month period prior to
the filing of the petition an individual, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter; or that the individual has been convicted of one or more crimes of
violence against the person within a 24-month period prior to the filing of the petition, and the
individual's failure to take prescribed medication or follow another prescribed regimen to treat a
mental illness was a significant aggravating or contributing factor in the circumstances surrounding
the crime;
(B) That the individual?s previous hospitalizations due to mental illness or the individual's
crime of violence occurred after or as a result of the individual?s failure to take medication or other
treatment as prescribed by a physician to treat the individual?s mental illness; and
(C) That the individual, in the absence of a court order requiring him or her to take medication
or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or
follow other regimen or treatment as prescribed is likely to lead to further instances in the reasonably
near future in which the individual becomes likely to cause serious harm or commit a crime of
violence against the person.
(2) Upon the filing of a petition seeking a treatment compliance order and the petition?s
review by a circuit judge or mental hygiene commissioner, counsel shall be appointed for the
individual if the individual does not already have counsel and a copy of the petition and all supporting
evidence shall be furnished to the individual and their counsel. If the circuit judge or mental hygiene
commissioner determines on the basis of the petition that it is necessary to protect the individual or
to secure their examination, a detention order may be entered ordering that the individual be taken
into custody and examined by a psychiatrist or licensed psychologist. A hearing on the allegations
in the petition, which may be combined with a hearing on a probable cause petition conducted
pursuant to the provisions of section two of this article or a final commitment hearing conducted
pursuant to the provisions of section four of this article, shall be held before a circuit judge or mental
hygiene commissioner. If the individual is taken into custody and remains in custody as a result of
a detention order, the hearing shall be held within forty-eight hours of the time that the individual is
taken into custody.
(3) If the allegations in the petition seeking a treatment compliance order are proved by the
evidence adduced at the hearing, which must include expert testimony by a psychiatrist or licensed
psychologist, the circuit judge or mental hygiene commissioner may enter a treatment compliance
order for a period not to exceed six months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month period prior to the filing of
the petition an individual, as a result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that on at least one occasion within a twenty-four month period prior
to the filing of the petition, has been convicted of a crime of violence against any person;
(C) That the individual's previous hospitalizations due to mental illness occurred as a result
of the individual's failure to take prescribed medication or follow a regimen or course of treatment
as prescribed by a physician or psychiatrist to treat the individual's mental illness; or that the
individual has been convicted for crimes of violence against any person, and the individual's failure
to take medication or follow a prescribed regimen or course of treatment of the individual's mental
illness was a significant aggravating or contributing factor in the commission of the crime;
(D) That a psychiatrist or licensed psychologist who has personally examined the individual
within the preceding twenty-four months has issued a written opinion that the individual, without the
aid of the medication or other prescribed treatment, is likely to cause serious harm to himself or
herself or to others;
(E) That the individual, in the absence of a court order requiring him or her to take medication
or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or
other treatment as prescribed is likely to lead to further instances in the reasonably near future in
which the individual becomes likely to cause serious harm or commit a crime of violence against any
person;
(F) That, where necessary, a responsible entity or individual is available to assist and monitor
the individual's compliance with an order requiring the individual to take the medication or follow other prescribed regimen or course of treatment;
(G) That the individual can obtain and take the prescribed medication or follow other
prescribed regimen or course of treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to assess the individual within forty-
eight hours of the entry of the treatment compliance order.
(4) The order may require an individual to take medication and treatment as prescribed and
if appropriate to attend scheduled medication and treatment-related appointments: Provided, That
a treatment compliance order shall be subject to termination or modification by a circuit judge or
mental hygiene commissioner if a petition is filed seeking termination or modification of the order
and it is shown in a hearing on the petition that there has been a material change in the circumstances
that led to the entry of the original order that justifies the order?s modification or termination:
Provided, however, That a treatment compliance order may be extended by a circuit judge or mental
hygiene commissioner for additional periods of time not to exceed six months, upon the filing of a
petition seeking an extension and after a hearing on the petition or upon the agreement of the
individual.
(5)(A) After the entry of a treatment compliance order in accordance with the provisions of
subdivisions (3) and (4) of subsection (b) of this section, if a verified petition is filed alleging that an
individual has not complied with the terms of a medication and treatment compliance order and if a
circuit judge or mental hygiene commissioner determines from the petition and any supporting
evidence that there is probable cause to believe that the allegations in the petition are true, counsel
shall be appointed for the individual and a copy of the petition and all supporting evidence shall be
furnished to the individual and his or her counsel. If the circuit judge or mental hygiene
commissioner considers it necessary to protect the individual or to secure his or her examination, a
detention order may be entered to require that the individual be examined by a psychiatrist or
psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on
a probable cause petition conducted pursuant to section two of this article or a final commitment hearing conducted pursuant to section four of this article, shall be held before a circuit judge or mental
hygiene commissioner. If the individual is taken and remains in custody as a result of a detention
order, the hearing shall be held within forty-eight hours of the time that the individual is taken into
custody.
(B) At a hearing on any petition filed pursuant to the provisions of paragraph (A), subdivision
(5), subsection (b) of this section, the circuit judge or mental hygiene commissioner shall determine
whether the individual has complied with the terms of the medication and treatment compliance order.
If the individual has complied with the order, the petition shall be dismissed: Provided, That if the
evidence presented to the circuit judge or mental hygiene commissioner shows that the individual has
complied with the terms of the existing order, but the individual's prescribed medication, dosage or
course of treatment needs to be modified, then the newly modified medication and treatment
prescribed by a psychiatrist who personally examined the individual may be properly incorporated
into a modified order. If the order has not been complied with, the circuit judge or mental hygiene
commissioner, after inquiring into the reasons for noncompliance and whether any aspects of the
order should be modified, may continue the individual upon the terms of the original order and direct
the individual to comply with the order or may modify the order in light of the evidence presented at
the hearing. If the evidence shows that the individual at the time of the hearing is likely to cause
serious harm to himself, herself or others as a result of the individual?s mental illness, the circuit
judge or mental hygiene commissioner may convert the proceeding into a probable cause proceeding
and enter a probable cause order directing the involuntary admission of the individual to a mental
health facility for examination and treatment: Provided, That all applicable due process and hearing
requirements of contained in section two and section three of this article have been fully satisfied.
(c) (1) The modified procedures may authorize that upon the certification of a qualified mental
health professional, as described in subdivision (2) of this subsection, that there is probable cause to
believe that an individual who has been hospitalized two or more times in the previous twenty-four
months because of mental illness is likely to cause serious harm to himself, herself or to others as a result of the mental illness if not immediately restrained, and that the best interests of the individual
would be served by immediate hospitalization, a circuit judge, mental hygiene commissioner, or
designated magistrate may enter a temporary probable cause order directing the involuntary
hospitalization of the individual at a mental health facility for immediate examination and treatment.
(2) The modified procedures may authorize the chief judge of a judicial circuit, or circuit
judge if there is no chief judge, to enter orders authorizing specific psychiatrists or licensed
psychologists, whose qualifications and training have been reviewed and approved by the Supreme
Court of Appeals, to issue certifications that authorize and direct the involuntary admission of an
individual subject to the provisions of this section on a temporary probable cause basis to a mental
health facility for examination and treatment: Provided, That the authorized psychiatrist or licensed
psychologist must conclude and certify based on personal observation prior to certification that the
individual is mentally ill and, because of such mental illness is imminently likely to cause serious
harm to himself or herself or to others if not immediately restrained, and promotion of the best
interests of the individual requires immediate hospitalization. Immediately upon certification, the
psychiatrist or licensed psychologist shall provide notice of the certification to a circuit judge, mental
hygiene commissioner or designated magistrate in the county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary probable cause determination
issued pursuant to the provisions of this section shall continue in effect for more than forty-eight
hours without the filing of a petition for involuntary hospitalization and the occurrence of a probable
cause hearing before a circuit judge, mental hygiene commissioner or designated magistrate. If at any
time the chief medical officer of the mental health facility to which the individual is admitted
determines that the individual is not likely to cause serious harm as a result of mental illness, the chief
medical officer shall discharge the individual and immediately forward a copy of the individual?s
discharge to the circuit judge, mental hygiene commissioner or designated magistrate."
The bill was then ordered to third reading.
S. B. 237, Allowing municipalities to increase hotel occupancy tax; on second reading, coming up in regular order, was read a second time and advanced to third reading with the
amendments pending.
S. B. 248, Relating to requirement that technology expenditures be made in accordance with
Education Technology Strategic Plan; 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 one by striking out everything after the enacting clause and
inserting in lieu thereof the following:
"That §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6, and §18-2J-7 of the Code
of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2J. PUBLIC AND HIGHER EDUCATION UNIFIED EDUCATIONAL
TECHNOLOGY STRATEGIC PLAN.
§18-2J-1. Findings; intent and purpose of article.
(a) The Legislature finds that technology may be used in the public school system for many
purposes including, but not limited to, the following:
(1) As an instructional tool that enables teachers to meet the individual instructional needs of
students who differ in learning styles, learning rates and the motivation to learn;
(2) As an effective resource for providing corrective, remedial and enrichment activities to
help students achieve proficiency at grade level or above in the basic skills of reading, composition
and arithmetic that are essential for advancement to more rigorous curriculum and success in higher
education, occupational and avocational pursuits;
(3) To ensure that all students have a basic level of computer literacy that will enable them
to participate fully in a society in which computers are an ever more prevalent medium for social,
economic, and informational interaction;
(4) To provide greater access for students to advanced curricular offerings, virtual field trips,
problem solving, team building exercises, reference information and source knowledge than could be provided efficiently through traditional on-site delivery formats;
(5) To help students obtain information on post-secondary educational opportunities, financial
aid, and the skills and credentials required in various occupations that will help them better prepare
for a successful transition following high school;
(6) To help students learn to think critically, apply academic knowledge in real life situations,
make decisions, and gain an understanding of the modern workplace environment through simulated
workplace programs;
(7) As a resource for teachers by providing them with access to sample lesson plans,
curriculum resources, on-line staff development, continuing education and college course-work; and
(8) As a tool for managing information, reporting on measures of accountability, analyzing
student learning and helping to improve student, school and school system performance;
(b) The Legislature finds that technology may be used in the system of higher education for
many purposes including, but not limited to, the following:
(1) For teaching, learning and research for all students across all disciplines and programs;
(2) By students, staff and faculty to discover, create, communicate and collaborate, as well as
to enhance research and economic development activities;
(3) For digital age literacy, problem solving, creativity, effective communication, collaboration
and high productivity skills essential for West Virginia citizens in a rapidly changing global economy;
(4) By libraries in higher education to offer reference services in a virtual environment online;
(5) By libraries in higher education to create and share cataloging records, and that it is
possible to create a seamless resource for sharing these resources between public and higher
education; and
(6) To offer electronic document delivery services to distance education students and to a
multitude of professionals throughout the state.
(c) The Legislature further finds that all of the uses of technology in the public school and
higher education systems are not necessarily exclusive and, therefore, that areas exist wherein cooperation and collaboration between the public schools, the institutions of higher education, and
their respective governing bodies will enable them to combine and share resources, improve
efficiency and better serve their students.
(d) The intent and purpose of this article is to establish a unified approach to the planning,
procurement and implementation of technology and technology services in the public schools, the
institutions of higher education, and their respective governing bodies that will guide the
administration and allocation of educational technology funds.
§18-2J-2. Governor's Advisory Council for Educational Technology.
(a) There is established under the Governor's Office of Technology, the Governor's Advisory
Council for Educational Technology composed of fifteen members as follows:
(1) The Governor's educational technology advisor, ex officio, who shall chair the council;
(2) The Governor's chief technology officer, ex officio;
(3) One public school technology coordinator;
(4) One public elementary, middle or Junior High school teacher;
(5) One public secondary school teacher;
(6) A technology representative from Marshall University;
(7) A technology representative from West Virginia University;
(8) One member of the Center for Professional Development board;
(9) Three individuals from the private sector with expertise in education technology;
(10) One public secondary or higher education student;
(11) One representative of the Office of Business Development;
(12) One member of the Higher Education Policy Commission, or his or her designee; and
(13) One member of the State Board, or his or her designee.
(b) The advisory council shall meet as necessary, but shall hold no less than four meetings
annually. Eight members constitutes a quorum for conducting the business of the advisory council.
All members of the advisory council are entitled to vote.
(c) The thirteen members of the council who are not members ex officio, shall be appointed
by the Governor with the advice and consent of the Senate for terms of three years, except that of the
original appointments, four members shall be appointed for one year; four members shall be
appointed for two years; and five members shall be appointed for three years. No member may serve
more than two consecutive full terms, nor may a member be appointed to a term which results in the
member serving more than seven consecutive years.
(d) Members of the advisory council shall serve without compensation, but shall be
reimbursed by the governor for all reasonable and necessary expenses actually incurred in the
performance of their official duties under this article upon presentation of an itemized sworn
statement of their expenses, except that any member of the advisory committee who is an employee
of the state shall be reimbursed by the employing agency.
§18-2J-3. Powers and duties of Governor's Advisory Council for Educational Technology.
(a) In addition to any other powers and duties assigned to it by this article and in this code,
Governor's Advisory Council for Educational Technology shall:
(1) Assess the broad spectrum of technology needs present within the state's education
systems as the basis for constructing a unified educational technology strategic plan that will guide
the administration and allocation of educational technology funds;
(2) Assemble and integrate into the planning process the perspectives of students, teachers,
faculty and administrators regarding educational technology programs;
(3) Assess, evaluate and publicize the effects of technology use by educators and students
toward student learning and achievement;
(4) Explore new approaches to improve administration, accountability and student
achievement within the education systems through technology application;
(5) Promulgate a legislative rule incorporating a unified educational technology strategic plan
as provided in section five of this article;
(6) Monitor the technology programs of the agencies and education systems affected by the educational technology strategic plan to assess its implementation and effectiveness; and
(7) Advise the Governor and the Legislature on any matters the Council considers important
inform the Governor and the Legislature on the state of education technology in the public schools
and the institutions of higher education and on any matters requested by the Governor and the
Legislature.
§18-2J-4. Educational technology strategic plan goals and strategies.
(a) The following are goals that the Governor's Advisory Council for Educational technology
should consider when constructing the educational technology strategic plan. Each goal shall apply
to public education, higher education or both, as appropriate:
(1) Maintaining a reasonable balance in the resources allocated among the customary diverse
uses of technology in the public school and higher education systems, while allowing flexibility to
address unanticipated priority needs and unusual local circumstances and ensuring efficient and
equitable use of technology at all levels from primary school through higher education, including
vocational and adult education;
(2) Providing for uniformity in technological hardware and software standards and procedures
to achieve interoperability between the public school and higher education systems to the extent that
the uniformity is considered prudent for reducing acquisition cost, avoiding duplication, promoting
expeditious repair and maintenance and facilitating user training, while allowing flexibility for local
innovations and options when the objectives relating to uniformity are reasonably met;
(3) Preserving the integrity of governance, administration, standards and accountability for
technology within the public school and higher education systems, respectively, while encouraging
collaborative service delivery and infrastructure investments with other entities that will reduce cost,
avoid duplication or improve services, particularly with respect to other entities such as the
educational broadcasting system, public libraries and other governmental agencies with compatible
technology interests;
(4) Improving the long-term ability of the state to efficiently manage and direct the resources available for technology in the public school and higher education systems to establish appropriate
infrastructure that ensures, to the extent practicable, a sustainable, cost effective and transparent
migration to new technology platforms;
(5) Fostering closer communication between faculty, students and administrators and
promoting the collaboration of schools, libraries, researchers, community members, state agencies,
organizations, business and industry, post-secondary institutions and public virtual learning
environments to meet the needs of all learners; and
(6) Creating and maintaining compatible and secure technology systems that enhance the
efficient operation of the education systems.
(b) The following are strategies that the Governor's Advisory Council for Educational
technology must address in the educational technology strategic plan. Unless specifically identified
otherwise, each strategy shall apply to public education, higher education or both, as appropriate:
(1) The strategy for using technology in the public school and higher education systems
consistent with the findings, intent and purpose of this article and other uses considered necessary to
improve student performance and progress. In addition, these uses may include:
(A) Providing for individualized instruction and accommodating a variety of learning styles
of students through computer-based technology, video and other technology-based instruction;
(B) Advancing learning through alternative approaches in curriculum to integrate education,
research and technology into life long learning strategies;
(C) Increasing student access to high quality blended distance learning curriculum using real
time interactive and online distance education tools;
(D) Recognizing that information literacy is a fundamental competency for life-long learning
and information literacy is incorporated into the curricula of higher education and the workplace; and
(E) Improving teaching and learning and the ability to increase student achievement by
meeting individual student needs;
(2) The strategy for allocating the resources available and developing the capacity necessary to achieve the purposes addressed in the plan. The strategy shall:
(A) Allow for reasonable flexibility for county boards and regional education service agencies
to receive assistance with the development and implementation of technological solutions designed
to improve performance, enrich the curriculum and increase student access to high level courses;
(B) Allow for reasonable flexibility for county boards, regional education service agencies and
institutional boards of governors to implement technological solutions that address local priorities
consistent with achieving the major objectives set forth in the education technology strategic plan;
and
(C) Use the most cost effective alternative allowable pursuant to section six of this article for
expending funds for technology acquisition and implementation consistent with the goals of the plan;
(D) Encourage development by the private sector of technologies and applications appropriate
for education; and
(E) Encourage the pursuit of funding through grants, gifts, donations or any other source for
uses related to education technology;
(3) For public education, the strategy for using technology to increase and maintain equity in
the array and quality of educational offerings, expand the curriculum, deliver high quality professional
development, and strengthen professional qualifications among the counties notwithstanding
circumstances of geography, population density and proximity to traditional teacher preparation;
(4) For public education, the strategy for developing and using the capacity of the public
school system to implement, support and maintain technology in the public schools through the
allocation of funds either directly or through contractual agreements with county boards and regional
education service agencies for labor, materials and other costs associated with the installation, set-up,
internet hook-up, wiring, repair and maintenance of technology in the public schools and state
institutions of higher education;
(5) The strategy for ensuring that the capabilities and capacities of the technology
infrastructure within the state and its various regions is adequate for acceptable performance of the technology being implemented in the public schools and the state institutions of higher education, for
developing the necessary capabilities and capacities, or for pursuing alternative solutions;
(6) The strategy for maximizing student access to learning tools and resources at all times
including before and after school or class, in the evenings, on weekends and holidays, and for public
education, noninstructional days, and during vacations for student use for homework, remedial work,
independent learning, career planning and adult basic education;
(7) The strategy for improving the efficiency and productivity of administrators;
(8) The strategy for taking advantage of bulk purchasing abilities to the maximum extent
feasible. This may include, but is not limited to:
(A) A method of recording all technology purchases across both the public education system
and the higher education system;
(B) Combining the purchasing power of the public education system and the higher education
system with the purchasing power of other state entities or all state entities; and
(C) A method of allowing public education and higher education to purchase from
competitively bid contracts initiated through the southern regional education board educational
technology cooperative and the American TelEdCommunications Alliance; and
(9) A strategy for allowing any other flexibility that is determined to be needed for the
effective use of technology in public education and higher education.
(c) Nothing in this section may be construed to conflict with a state higher education
institution's mission as set forth in its compact.
§18-2J-5. Unified educational technology strategic plan; submission of legislative rule to
Legislative Oversight Commission on Education Accountability.
(a) On or before the first day of October, two thousand five, the Governor's Advisory Council
for Educational Technology shall promulgate a legislative rule in accordance with the provisions of
article three-a, chapter twenty-nine-a of this code which incorporates a unified educational technology
strategic plan as provided in this article. On or before the first day of October in each year thereafter, the council shall submit annual updates to the rule and plan, along with any necessary revisions. The
time line for updating and revising the rule and plan also shall be in accordance with the federal E-rate
discount program. The plan shall become effective the school year following the time of approval
of the rule.
(b) On or before the fifteenth day of June, two thousand five, and each year thereafter, each
state institution of higher education shall submit a technology plan for the next fiscal year to the
Higher Education Policy Commission. The plan shall be in a form and contain the information
determined by the Governor's Advisory Council for Educational Technology. On or before the
thirtieth day of June, two thousand five, and each year thereafter, the Higher Education Policy
Commission shall submit the plans to the Governor's Advisory Council for Educational Technology
for its consideration in constructing the unified educational technology strategic plan.
§18-2J-6. Allocation and expenditure of appropriations.
(a) After the thirtieth day of June, two thousand five, notwithstanding any other provision of
this code to the contrary, and specifically section seven, article two-e of this chapter, the state board,
regional education service agencies, the higher education policy commission and the state institutions
of higher education shall allocate and expend state appropriations for technology in the public schools
or the state institutions of higher education, as appropriate, in accordance with the unified educational
technology strategic plan subject to the following:
(1) Expenditures from grants which can only be used for certain purposes are not required to
be made in accordance with the plan.
(2) If the legislative rule incorporating the plan is not approved in accordance with the
provisions of article three-a, chapter twenty-nine-a of this code, the plan has no effect;
(3) For public education, the expenditures shall be made directly, or through lease-purchase
arrangements pursuant to the provisions of article three, chapter five-a of this code, or through
contractual agreements or grants to county boards and regional education service agencies or any
combination of the foregoing options as shall best implement the strategic plan in the most cost effective manner;
(4) Nothing in this section nor in the prior enactment of this section restricts the expenditure
of educational technology funds appropriated for the fiscal year, two thousand five, for the purposes
for which they were allocated; and
(5) Except as provided in subdivision (2) of this subsection, no more than fifty percent of the
state appropriations for the fiscal year, two thousand six, to the Department of Education for
educational technology in kindergarten through the twelfth grade may be expended or encumbered
except in accordance with the Unified educational technology strategic plan.
(b) Nothing in this section requires any specific level of appropriation by the Legislature.
§18-2J-7. Report to the Legislative Oversight Commission on Education Accountability.
The state board and the higher education policy commission shall report to the legislative
oversight commission on education accountability annually as soon as practical following the
approval, annual update or revision of the unified educational technology strategic plan. The report
shall include the proposed allocations of funds or planned expenditures for educational technology
within the respective public school and higher education systems during the next fiscal year in
accordance with the plan compared with the previous year's allocations and expenditures."
There being no further amendments, the bill was then ordered to third reading.
S. B. 283, Continuing Health Care Authority; on second reading, coming up in regular order,
was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one, section twenty-eight, by striking out
everything after the section heading and inserting in lieu thereof the following:
"Pursuant to the provisions of article ten, chapter four of this code, the Health Care Authority
shall continue to exist until the first day of July, two thousand eight, unless sooner terminated,
continued or reestablished."
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 418, Providing insurance reform by expanding and providing funding
and expanded powers for Office of Consumer Advocacy; on second reading, coming up in regular
order, was read a second time and advanced to third reading with the amendments pending.
Com. Sub. for S. B. 419, Creating Local Government Flexibility Act; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 435, Creating method municipal courts can recover certain uncollectible
fines; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and costs or failure to appear in court.
(a) If costs, fines, forfeitures or penalties imposed by the municipal court upon conviction of
a person for a criminal offense as defined in section three-c, article three, chapter seventeen-b of this
code are not paid in full within one hundred eighty days of the judgment, the municipal court clerk
or, upon a judgment rendered on appeal, the circuit clerk shall notify the Division of Motor Vehicles
of such the failure to pay: Provided, That at the time the judgment is imposed, the judge shall provide
the person with written notice that failure to pay the same as ordered may result in the withholding
of any income tax refund due the licensee and shall result in the suspension of such the person's
license or privilege to operate a motor vehicle in this state and that such the suspension could result
in the cancellation of, the failure to renew or the failure to issue an automobile insurance policy
providing coverage for such the person or such the person's family: Provided, however, That the
failure of the judge to provide such notice shall does not affect the validity of any suspension of such
the person's license or privilege to operate a motor vehicle in this state. For purposes of this section,
payment shall be stayed during any period an appeal from the conviction which resulted in the imposition of such costs, fines, forfeitures or penalties is pending.
Upon such notice, the Division of Motor Vehicles shall suspend the person's driver's license
or privilege to operate a motor vehicle in this state until such time that the costs, fines, forfeitures or
penalties are paid.
(b) Notwithstanding the provisions of this section to the contrary, the notice of the failure to
pay such costs, fines, forfeitures or penalties shall may not be given where the municipal court, upon
application of the person upon whom the same costs, fines, forfeitures or penalties were imposed filed
prior to the expiration of the period within which the same these are required to be paid, enters an
order finding that such the person is financially unable to pay all or a portion of the same costs, fines,
forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is
financially unable to pay a portion thereof of the costs, fines, forfeitures or penalties, requires the
person to pay the remaining portion, thereof the municipal court shall notify the Division of Motor
Vehicles of such the person's failure to pay the same if the same is if not paid within the period of
time ordered by such the court.
(c) If a person charged with a criminal offense fails to appear or otherwise respond in court,
the municipal court clerk shall notify the Division of Motor Vehicles thereof within fifteen days of
the scheduled date to appear unless such the person sooner appears or otherwise responds in court to
the satisfaction of the judge. Upon such notice, the Division of Motor Vehicles shall suspend the
person's driver's license or privilege to operate a motor vehicle in this state until such time that the
person appears as required.
(d) On and after the first day of July, two thousand eight, if the licensee fails to respond to the
Division of Motor Vehicles order of suspension within ninety days of receipt of the certified letter,
the municipal court of original jurisdiction shall notify the Tax Commissioner that the licensee has
failed to pay the costs, fines, forfeitures or penalties assessed by the court or has failed to respond to
the citation. The notice provided by the municipal court to the Tax Commissioner must include the
licensee's social security number. The Tax Commissioner, or his or her designee, shall withhold from any personal income tax refund due and owing to a licensee, the costs, fines, forfeitures or penalties
due to the municipality, the Tax Commissioner's administration fee for the withholding and any and
all fees that the municipal court would have collected had the licensee appeared: Provided, That the
Tax Commissioner's administration fee may not exceed twenty-five dollars: Provided, however, That
the Tax Commissioner may change this maximum amount limitation for this fee for fiscal years
beginning on or after the first day of July, two thousand eight, by legislative rule promulgated in
accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided further,
That the administrative fees deducted shall be deposited in the special revolving fund hereby created
in the state treasury, which shall be designated as the 'municipal fines and fees collection fund', and
the Tax Commissioner shall make such expenditures from the fund as he or she deems appropriate
for the administration of this subsection. After deduction of the Tax Commissioner's administration
fee, the Tax Commissioner shall remit to the municipality all remaining amounts withheld pursuant
to this section and the municipal court shall distribute applicable costs, fines, forfeitures or penalties
owed to the municipality, the Regional Jail Authority Fund, the Crime Victims Compensation Fund,
the Community Corrections Fund, the Governor's subcommittee on law-enforcement training or any
other fund or payee that may be applicable. After the costs, fines, forfeitures or penalties are
withheld, the Tax Commissioner shall refund any remaining balance due the licensee. If the refund
is not sufficient to cover all the costs, fines, forfeitures or penalties being withheld pursuant to this
section, the Tax Commissioner's administration fee shall be retained by the Tax Commissioner, and
the remaining money withheld shall be remitted by the Tax Commissioner to the municipality. The
municipality shall then allocate the money so remitted to the municipality in the following manner:
(1) Any costs, fines, forfeitures or penalties due to the municipality; (2) seventy-five percent of the
remaining balance shall be paid to the appropriate Regional Jail Authority Fund; (3) fifteen percent
of the remaining balance shall be paid to the Crime Victims Compensation Fund; (4) six percent of
the remaining balance shall be paid into the Community Corrections Fund; and (5) the final four
percent shall be paid to the Governor's subcommittee on law-enforcement training. When the costs, fines, forfeitures or penalties exceed the licensee's income tax refund, the Tax Commissioner shall
withhold the remaining balance in subsequent years until such time as the costs, fines, forfeitures or
penalties owed are paid in full. The Tax Commissioner shall remit the moneys that he or she collects
to the appropriate municipality no later than the first day of July of each year. If the municipal court
or the municipality subsequently determines that any such costs, fines, forfeitures or penalties were
erroneously imposed, the municipality shall promptly notify the tax commissioner. If the refunds
have not been withheld and remitted, the tax commissioner may not withhold and remit payment to
the municipality and shall so inform the municipality. If the refunds have already been withheld and
remitted to the municipality, the tax commissioner shall so inform the municipality. In either event,
all refunds for erroneously imposed costs, fines, forfeitures or penalties shall be made by the
municipality and not by the tax commissioner.
(e) Rules and effective date. - The Tax Commissioner may promulgate such rules as may be
useful or necessary to carry out the purpose of this section and to implement the intent of the
Legislature, to be effective on the first day of July, two thousand eight. Rules shall be promulgated
in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(f) On or before the first day of July, two thousand five, the municipal court may elect to
reissue notice as provided in subsections (a) and (c) of this section to the Division of Motor Vehicles
for persons who remain noncompliant: Provided, That the person was convicted or failed to appear
on or after the first day of January, one thousand nine hundred ninety-three. If the original
notification cannot be located, the Division of Motor Vehicles shall accept an additional or duplicate
notice from the municipal court clerk.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or penalties imposed as the result of
criminal conviction or for failure to appear in court.
(a) The Division shall suspend the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state upon receiving notice from a circuit court, magistrate
court or municipal court of this state, pursuant to section two-b, article three, chapter fifty of this code
or section two-b, article ten, chapter eight of said code or section seventeen, article four, chapter
sixty-two of said code, that such person has defaulted on the payment of costs, fines, forfeitures,
penalties or restitution imposed on the person by the circuit court, magistrate court or municipal court
upon conviction for any criminal offense by the date such court had required such person to pay the
same, or that such person has failed to appear in court when charged with such an offense. For the
purposes of this section; section two-b, article three, chapter fifty of said code; section two-b, article
ten, chapter eight of said code; and section seventeen, article four, chapter sixty-two of said code,
'criminal offense' shall be defined as any violation of the provisions of this code, or the violation of
any municipal ordinance, for which the violation thereof may result in a fine, confinement in jail or
imprisonment in the penitentiary a correctional facility of this state: Provided, That any parking
violation or other violation for which a citation may be issued to an unattended vehicle shall not be
considered a criminal offense for the purposes of this section; section two-b, article ten, chapter eight
of said code; section two-b, article three, chapter fifty of said code; or section seventeen, article four,
chapter sixty-two of said code.
(b) A copy of the order of suspension shall be forwarded to such person by certified mail,
return receipt requested. No order of suspension becomes effective until ten days after receipt of a
copy of such order. The order of suspension shall advise the person that because of the receipt of
notice of the failure to pay costs, fines, forfeitures or penalties, or the failure to appear, a presumption
exists that the person named in the order of suspension is the same person named in the notice. The
Commissioner may grant an administrative hearing which substantially complies with the
requirements of the provisions of section two, article five-a, chapter seventeen-c of this code upon
a preliminary showing that a possibility exists that the person named in the notice of conviction is not
the same person whose license is being suspended. Such request for hearing shall be made within ten
days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall be for the person requesting the hearing to present evidence that he or she is not the person named in the
notice. In the event the Commissioner grants an administrative hearing, the Commissioner shall stay
the license suspension pending the Commissioner's order resulting from the hearing.
(c) A suspension under this section and section three-a of this chapter will continue until the
person provides proof of compliance from the municipal, magistrate or circuit court and pays the
reinstatement fee as provided in section nine of this article. The reinstatement fee is assessed upon
issuance of the order of suspension regardless of the effective date of suspension.
§17B-3-9. Surrender and return of license not required.
The Division, upon suspending or revoking a license, shall may not require that the license
be surrendered to and be retained by the Division. The surrender of a license shall may not be a
precondition to the commencement and tolling of any applicable period of suspension or revocation:
Provided, That before the license may be reinstated, the licensee shall pay a fee of fifteen fifty dollars,
in addition to all other fees and charges, which shall be collected by the Division and deposited in a
special revolving fund to be appropriated to the Division for use in the enforcement of the provisions
of this section. Provided, however, That when any license is suspended for failure to maintain motor
vehicle liability insurance the reinstatement fee is fifty dollars"
Delegate Frich requested the Clerk to record her as voting "Nay" on the adoption of the
foregoing amendment.
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 456, Relating to cure offer from merchant or seller to consumer; on
second reading, coming up in regular order, was read a second time and third reading.
Com. Sub. for S. B. 458, Permitting transfer of State Police for certain inappropriate conduct;
relocation expense; on second reading, coming up in regular order, was read a second time and
advanced to third reading with the amendments pending.
Com. Sub. for S. B. 588, Relating to cruelty to animals and intervention program for certain
youths; on second reading, coming up in regular order, was read a second time and advanced to third reading with the amendments pending.
Com. Sub. for S. B. 603, Relating to higher education; on second reading, coming up in
regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page nine, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
"That §18B-1-7 and §18B-1-9 of the Code of West Virginia, 1931, as amended, be repealed;
that sections §18B-2-1, §18B-2-2 and §18B-2-3 of said code be repealed; that §18B-3-5 and §18B-3-7
of said code be repealed; that §18B-5-2d of said code be repealed; that said code be amended by
adding thereto a new section, designated §12-1-12b; that §12-3-5, §12-3-6, §12-3-7 and §12-3-8 of
said code be amended and reenacted; that §18-2-23a of said code be amended and reenacted; that said
code be amended by adding thereto a new section, designated §18-2-24; that said code be amended
by adding thereto a new section, designated §18A-3-11; that §18A-3A-1 and §18A-3A-2b of said
code be amended and reenacted; that said code be amended by adding thereto a new section,
designated §18A-3A-6; that §18B-1-3 and §18B-1-6 of said code be amended and reenacted; that
§18B-1A-2 and §18B-1A-6 of said code be amended and reenacted; that §18B-1B-4, §18B-1B-5 and
§18B-1B-6 of said code be amended and reenacted; that said code be amended by adding thereto a
new section, designated §18B-1B-13; that §18B-2A-3 and §18B-2A-4 of said code be amended and
reenacted; that said code be amended by adding thereto a new section, designated §18B-2A-7; that
said code be amended by adding thereto a new section, designated §18B-2B-9; that §18B-3-1,
§18B-3-2 and §18B-3-3 of said code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §18B-3-4; that §18B-4-5, §18B-4-5a and §18B-4-7 of said code be
amended and reenacted; that §18B-5-3, §18B-5-4, §18B-5-7 and §18B-5-9 of said code be amended
and reenacted; that said code be amended by adding thereto a new section, designated §18B-5-10; that
§18B-10-1, §18B-10-5 and §18B-10-6 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §18B-10-6a; that said code be amended by adding thereto a new section, designated §18B-11-7; and that §18B-14-11 of said code be amended
and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.
§12-1-12b. Pilot program for investments by Marshall University and West Virginia
University.
(a) Notwithstanding any provision of this article to the contrary, the governing boards of
Marshall University and West Virginia University each may invest certain funds with its respective
nonprofit foundation that has been established to receive contributions exclusively for that university
and which exists on the first day of January, two thousand five. Any such investment is subject to
the limitations of this section.
(b) A governing board, through its chief financial officer may enter into agreements, approved
as to form by the State Treasurer, for the investment by its foundation of certain funds subject to their
administration. Any interest or earnings on the moneys invested is retained by the investing
university
(c) Moneys of a university that may be invested with its foundation pursuant to this section
are those subject to the administrative control of the university that are collected under an act of the
Legislature for specific purposes, and do not include any funds made available to the university from
the state general revenue fund or the funds established in sections eighteen or eighteen-a, article
twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section may
be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University may at any
time have not more than eight million dollars invested with its foundation. Of the moneys authorized
for investment by this section, West Virginia University may at any time have not more than twenty-
five million dollars invested with its foundation.
(e) Investments by foundations that are authorized under this section shall be made in accordance with and subject to the provisions of the "Uniform Prudent Investor Act" codified as
article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing
board shall establish investment policies in accordance with the Uniform Prudent Investor Act for
those moneys invested with its foundation. The governing board shall review, establish and modify,
if necessary, the investment objectives as incorporated in its investment policies so as to provide for
the financial security of the moneys invested with its foundation. The governing boards shall give
consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by the thirty-first day of December, to the
Governor and to the Joint Committee on Government and Finance on the performance of investments
managed by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with its foundation pursuant to this
section expires on the first day of July, two thousand ten.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS
§12-3-5. When requisition to Auditor sufficient authority for issuing warrant.
(a) When an appropriation has been made by law, subject to the order or payable on the
requisition of a particular officer, board or person, the order or written or electronic requisition in
writing of such officer, board, or person shall be is sufficient authority to the Auditor to issue his a
warrant for the same or any party thereof.
(b) The Auditor:
(1) Shall, if feasible within the Auditor's existing resources, accept an electronic requisition
from Marshall University and West Virginia University;
(2) May accept an electronic requisition from any entity other than Marshall University or
West Virginia University at his or her discretion; and
(3) May not issue a warrant for an amount that exceeds the appropriation or for an expired
appropriation. Provided, that the appropriation has not expired and the amount thereof shall not be
exceeded.
§12-3-6. Requisitions on behalf of state boards and institutions.
Appropriations
(a) An appropriation made to or for any state board or institution shall be drawn from the
Treasury upon the requisition of the proper officers an appropriate officer thereof made upon to the
Auditor at such times and in such amounts as may be is necessary for the purposes for which such
appropriations are the appropriation is made. and The Auditor shall pay the amount named in any
such the requisition at such times and in such installments as shall be are necessary for the purposes
for which any such the appropriation is made.
But all requisitions for appropriations
(b) Except as provided in subsection (c) of this section, a requisition for appropriation for new
buildings and substantial betterments except such as are under control of the state commissioner of
public institutions shall be accompanied by the architect's estimate that the amount named in such
the requisition is needed for immediate use.
(c) The provisions of subsection (b) of this section do not apply to a requisition from:
(1) An institution from which the Auditor is required to accept an electronic requisition. Such
an institution is not required to submit the documentation required in subsection (b) of this section,
but shall maintain the documentation for inspection at the Auditor's request; and
(2) The Commissioner of Corrections.
(d) The Auditor shall not may issue his a warrant to pay any money out of the State Treasury
unless the same only if the money is needed for the present use.
§12-3-7. Payment of compensation and expenses of members of state boards and commissions;
embezzlement.
The members of all state boards and commissions, unless a different rate of compensation is
provided by law, shall be allowed
(a) Unless otherwise provided by law, a member of any state board or commission:
(1) Receives four dollars per day for each day necessarily employed as such, including the
time spent in going traveling to and returning from the place of meeting location; and
(2) Receives the actual and necessary expenses incurred by them in the discharge of their his
or her duties; and
(3) Does not receive mileage reimbursement. except where it is otherwise specifically
provided no mileage shall be paid. But before payment to any such member of any such
compensation or expenses, he shall make up
(b) Prior to receiving compensation or expense reimbursement:
(1) The member prepares in duplicate and certify to the correctness of an itemized statement
specifying of the number of days spent (giving dates) and of the expenses incurred;
(2) The member certifies the accuracy of the itemized statement;
(3) which statement shall be delivered The member delivers the original to the secretary or
clerk of the institution on behalf of which the duties are performed, the original whereof the secretary
or clerk shall file or preserve in his office, and board or commission for preservation in its office; and
(4) The secretary or clerk immediately forwards the duplicate of which he shall at once
forward to the Auditor.
(c) If any such member shall willfully make makes a greater charge of such services or
expenses than truth justified, he shall be or she is guilty of embezzlement and punished accordingly.
(d) The governing board of Marshall University and West Virginia University each satisfies the requirements of subsection (b) of this section by maintaining the member's original itemized,
certified statement and submitting an electronic requisition to the Auditor.
§12-3-8. Requisition on behalf of institutions to be accompanied by statement showing funds
on hand.
No requisition shall be A requisition made upon the Auditor for any money appropriated for
the a penitentiary; state correctional facility; the West Virginia schools School for the Deaf and Blind;
state mental health facilities; state hospitals; corrections facilities; or for Marshall University; West
Virginia University; any other public institution for education, charity or correction; or institutions
governed by the university of West Virginia board of trustees by the board of directors of the state
college system, unless such requisition under the jurisdiction of the Higher Education Policy
Commission or the West Virginia Council for Community and Technical College Education shall be
accompanied by the statement in writing of the treasurer or other a written or electronic statement of
a financial officer of such the institution, showing the amount of money in his or her hands to the
credit of such the institution, or otherwise in its control, on the day such the requisition is forwarded
for payment.
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-23a. Annual professional staff development goals established by State Board;
coordination of professional development programs; program development, approval and
evaluation.
(a) Legislative intent. -- The intent of this section is:
(1) To provide for the coordination of professional development programs by the State Board;
and
(2) To promote high-quality instructional delivery and management practices for a thorough
and efficient system of schools; and
(3) To ensure that the expertise and experience of state institutions of higher education with teacher preparation programs are included in developing and implementing professional development
programs.
(b) Goals. -- The State Board annually shall establish goals for professional staff development
in the public schools of the state. As a first priority, the State Board shall require adequate and
appropriate professional staff development to ensure high quality teaching that will enable students
to achieve the content standards established for the required curriculum in the public schools.
The State Board shall submit the goals to the State Department of Education, the Center for
Professional Development, the regional educational service agencies, the Higher Education Policy
Commission and the Legislative Oversight Commission on Education Accountability on or before
the fifteenth day of January each year.
The goals shall include measures by which the effectiveness of the professional staff
development programs will be evaluated. The professional staff development goals may shall include
separate goals for teachers, principals and paraprofessional service personnel and may include
separate goals for classroom aides and others in the public schools.
In establishing the goals, the State Board shall review reports that may indicate a need for
professional staff development including, but not limited to, the report of the Center for Professional
Development created in article three-a, chapter eighteen-a of this code, student test scores on the
statewide student assessment program, the measures of student and school performance for
accreditation purposes, school and school district report cards and its plans for the use of funds in the
strategic staff development fund pursuant to section thirty-two, article two, chapter eighteen of this
code.
(c) The Center for Professional Development shall design a proposed professional staff
development program plan to achieve the goals of the State Board and shall submit the proposed plan
to the State Board for approval as soon as possible following receipt of the State Board goals each
year. In developing and implementing this plan, the Center first shall rely upon the available expertise
and experience of state institutions of higher education before procuring advice, technical assistance or consulting services from sources outside the state.
The proposed plan shall include a strategy for evaluating the effectiveness of the professional
staff development programs delivered under the plan and a cost estimate. The State Board shall
review the proposed plan and return it to the Center for Professional Development noting whether the
proposed plan is approved or is not approved, in whole or in part. If a proposed plan is not approved
in whole, the State Board shall note its objections to the proposed plan or to the parts of the proposed
plan not approved and may suggest improvements or specific modifications, additions or deletions
to address more fully the goals or eliminate duplication. If the proposed plan is not wholly approved,
the Center for Professional Development shall revise the plan to satisfy the objections of the State
Board. State board approval is required prior to implementation of the professional staff development
plan.
(d) The State Board approval of the proposed professional staff development plan shall
establish a Master Plan for Professional Staff Development which shall be submitted by the State
Board to the affected agencies and to the Legislative Oversight Commission on Education
Accountability. The Master Plan shall include the State Board-approved plans for professional staff
development by the State Department of Education, the Center for Professional Development, the
state institutions of higher education and the regional educational service agencies to meet the
professional staff development goals of the State Board. The Master Plan also shall include a plan
for evaluating the effectiveness of the professional staff development delivered through the programs
and a cost estimate.
The Master Plan shall serve as a guide for the delivery of coordinated professional staff
development programs by the State Department of Education, the Center for Professional
Development, the state institutions of higher education and the regional educational service agencies
beginning on the first day of June in the year in which the Master Plan was approved through the
thirtieth day of May in the following year. Provided, That nothing in this section shall This section
does not prohibit changes in the Master Plan, subject to State Board approval, to address staff development needs identified after the Master Plan was approved.
§18-2-24. Collaboration of state institutions of higher education having a teacher preparation
program with the Center for Professional Development and the regional
education service agencies.
(a) For the purposes of this section "teacher preparation institution" means a state institution
of higher education with a teacher preparation program.
(b) The intent of this section is to establish a structure to enhance collaboration between the
teacher preparation institutions, the Center for Professional Development and the regional education
service agencies in providing professional development.
(c) The Legislature finds that:
(1) There is insufficient collaboration of the teacher preparation institutions with the Center
for Professional Development and each of the regional education service agencies;
(2) More collaboration would prevent duplication of services and result in higher quality
professional development;
(3) Creating a structure and assigning responsibility would promote more effective
collaboration;
(4) The state's research and doctoral degree-granting public institutions of higher education,
West Virginia University and Marshall University, have the most capacity to be important sources
of research and expertise on professional development;
(5) West Virginia University and Marshall University are the only institutions in the state that
offer course work leading to a doctoral degree in education administration;
(6) As the largest state institutions of higher education, West Virginia University and
Marshall University have more capacity than any other institution in the state to handle the additional
responsibilities assigned in this section;
(7) The coordination by West Virginia University and Marshall University of the efforts of
other teacher preparation institutions to collaborate with the Center for Professional Development and each of the regional education service agencies will provide points of accountability for the
collaboration efforts of the other institutions; and
(8) The State Board's authority over the regional education service agencies can be used to
motivate the agencies to collaborate with the teacher preparation institutions in providing professional
development and will serve as a point of accountability for the collaboration efforts of the agencies.
(d) West Virginia University and Marshall University shall collaborate with the Center for
Professional Development in performing the Center's duties. This collaboration shall include at least
the following:
(1) Including the teacher preparation institutions in the proposed professional staff
development program plan required to be submitted to the State Board by section twenty-three-a of
this article;
(2) Providing any available research-based expertise that would be helpful in the design of the
proposed professional staff development program plan;
(3) Providing any available research-based expertise that would be helpful in the
implementation of professional development programs; and
(4) Arranging for other state institutions of higher education having a teacher preparation
program to assist the Center when that assistance would be helpful.
(e) All teacher preparation institutions shall collaborate with the regional education service
agency of the service area in which the institution is located at least to:
(1) Prevent unnecessary duplication of services;
(2) Assist in the implementation of the professional development programs of the regional
education service agency; and
(3) Assist the regional education service agency in obtaining any available grants for
professional development or to apply for any available grant with the agency collaboratively.
(f) Since no teacher preparation institution exists in the service area of Regional Education
Service Agency IV, Marshall University shall collaborate with that Agency for the purposes set forth in subdivision (e) of this section.
(g) In addition to the collaboration required by subsections (e) and (f) of this section of all
teacher preparation institutions, West Virginia University and Marshall University shall:
(1) Coordinate the collaboration of each of the other teacher preparation institutions in their
designated coordination area with the appropriate regional education service agency. This
coordination at least includes ensuring that each of the other institutions are collaborating with the
appropriate regional education service agency; and
(2) Collaborate with each of the other teacher preparation institutions in their designated
coordination area. This collaboration at least includes providing assistance to the other institutions
in providing professional development and in their collaboration with the appropriate regional
education service agency.
(h) The designated coordination area of West Virginia University includes the service areas
of Regional Education Service Agencies V, VI, VII and VIII. The designated coordination area of
Marshall University includes the service areas of Regional Education Service Agencies I, II, III and
IV.
(i) The State Board shall ensure that each of the regional education service agencies is
collaborating with the teacher preparation institution or institutions in its service area for the purposes
set forth in subsection (e) of this section. Since Regional Education Service Agency IV does not have
a teacher preparation institution in its service area, the State Board shall ensure that it is collaborating
with Marshall University for the purposes set forth in subsection (e) of this section.
(j) Before a regional education service agency, except for Regional Education Service Agency
IV, obtains professional development related services or expertise from any teacher preparation
institution outside of that agency's service area, the agency shall inform the Center for Professional
Development Board. Before Regional Education Service Agency IV obtains professional
development related services or expertise from any teacher preparation institution other than Marshall
University, the agency shall inform the Center Board.
(k) The collaboration and coordination requirements of this section includes collaborating and
coordinating to provide professional development for at least teachers, principals and
paraprofessionals.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-11. Study of professional development standards and best practices.
The Legislative Oversight Commission on Education Accountability shall cause a study to
be conducted to determine and to recommend standards and best practices for professional
development that are focused on advancing student achievement. The study and a final report of
recommendations shall be completed prior to the first day of September, two thousand five. The
Commission shall submit the final report to the Joint Committee on Government and Finance. The
Commission shall determine if resources to assist in the completion of the study are available from
sources other than public funds and shall report such to the Joint Committee.
ARTICLE 3A. CENTER FOR PROFESSIONAL DEVELOPMENT.
§18A-3A-1. Center for Professional Development; intent and mission; Principals Academy
curriculum and expenses; authorization to charge fees.
(a) Teaching is a profession that directly correlates to the social and economic well-being of
a society and its citizens. Superior teaching is essential to a well-educated and productive populace.
Strong academic leadership provided by principals and administrators skilled in modern management
principles is also essential. The intent of this article is to recognize the value of professional
involvement by experienced educators, principals and administrators in building and maintaining a
superior force of professional educators and to establish avenues for applying such this involvement.
(b) The general mission of the Center is to advance the quality of teaching and management
in the schools of West Virginia through: (1) The implementation primarily of statewide training,
professional staff development, including professional staff development for at least teachers, principals and paraprofessionals, and technical assistance programs and practices as recommended
by the State Board to assure the highest quality of teaching and management; and (2) the provision
of technical and other assistance and support to regional and local education agencies in identifying
and providing high quality professional staff development, including professional staff development
for at least teachers, principals and paraprofessionals, and training programs and implementing best
practices to meet their locally identified needs. The Center also may implement local programs if the
State Board, in its Master Plan for Professional Staff Development established pursuant to section
twenty-three-a, article two, chapter eighteen of this code, determines that there is a specific local need
for the programs. Additionally, the Center shall perform such other duties as are assigned to it by law.
Nothing in this article shall be construed to require any specific level of funding by the
Legislature.
(c) Subject to subsection (d) of this section, the Center Board shall consist of eleven persons
as follows: The Secretary of Education and the Arts, ex officio, and the State Superintendent, of
schools ex officio, both of whom shall be entitled to vote; three members of the State Board, elected
by the State Board; three experienced educators, of whom two shall be working classroom teachers
and one of whom shall be a school or county administrator appointed by the Governor by and with
the advice and consent of the Senate, all of whom shall be experienced educators who have achieved
recognition for their superior knowledge, ability and performance in teaching or management, as
applicable; and three citizens of the state, one of whom shall be a representative of public higher
education and all of whom shall be knowledgeable in matters relevant to the issues addressed by the
Center, including, but not limited to, professional development and management principles, appointed
by the Governor by and with the advice and consent of the Senate. Not more than two appointees
shall be residents within the same congressional district. The Center Board shall be cochaired by the
Secretary of Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board
may serve no more than two consecutive two-year terms. The State Board shall elect another member to fill the unexpired term of any person so elected who subsequently vacates State Board membership.
Of the initial appointed members, three shall be appointed for one-year terms and three shall be
appointed for two-year terms. All successive appointments shall be for two-year terms. An
experienced educator may serve no more than two consecutive two-year terms. The Governor shall
appoint a new member to fill the unexpired term of any vacancy in the appointed membership.
(d) On the first day of July, two thousand five, the Center for Professional Development Board
shall be reconstituted, all terms of elected and appointed members expire on that date, the provisions
of subsection (c) of this section are void and the provisions of this subsection become effective. The
Center Board shall consist of thirteen persons as follows: The Secretary of Education and the Arts,
ex officio, and the State Superintendent, ex officio, both of whom shall be entitled to vote; two
members of the State Board, elected by the State Board; one person employed by West Virginia
University and one person employed by Marshall University, both of whom shall be appointed by the
President of the employing institution, both of whom are faculty in the teacher education section of
the employing institution and both of whom are knowledgeable in matters relevant to the issues
addressed by the Center; one regional education service agency executive director, elected by all of
the regional education service agency executive directors; three experienced educators, one of whom
shall be a working classroom teacher, one of whom shall be a school principal and one of whom shall
be a county administrator, all of whom shall be appointed by the Governor by and with the advice and
consent of the Senate, all of whom shall be experienced educators who have achieved recognition for
their superior knowledge, ability and performance in teaching or management, as applicable, and all
of whom are knowledgeable in matters relevant to the issues addressed by the Center; and three
citizens of the state, all of whom shall be knowledgeable in matters relevant to the issues addressed
by the Center, including, but not limited to, professional development and management principles,
appointed by the Governor by and with the advice and consent of the Senate. Not more than two
gubernatorial appointees shall be residents within the same congressional district. The Center Board
shall be cochaired by the Secretary of Education and the Arts and the State Superintendent.
All successive elections shall be for two-year terms. Members elected from the State Board
may serve no more than two consecutive two-year terms. The State Board shall elect another member
to fill the unexpired term of any person so elected who subsequently vacates State Board membership.
If the executive director elected by the regional education service agency executive directors ceases
to be employed in that capacity, the regional education service agency executive directors shall elect
another executive director to fill the unexpired term. Of the initial members appointed by the
Governor, three shall be appointed for one-year terms and three shall be appointed for two-year terms.
All successive appointments by the Governor shall be for two-year terms. An experienced educator
may serve no more than two consecutive two-year terms. The Governor shall appoint a new member
to fill the unexpired term of any vacancy in the appointed membership. The members appointed by
the Presidents of West Virginia University and Marshall University shall serve two-year terms. If the
person employed by West Virginia University or the person employed by Marshall University ceases
to be employed by the institution for which they were employed, the president of that institution shall
appoint another employee to fill the unexpired term.
(d) (e) The Center for Professional Development Board shall meet at least quarterly and the
appointed members shall be reimbursed for reasonable and necessary expenses actually incurred in
the performance of their official duties from funds appropriated or otherwise made available for such
those purposes upon submission of an itemized statement therefor.
(e) (f) Subject to subsection (g) of this section, from appropriations to the Center for
Professional Development, the Center Board shall employ and fix the compensation of an Executive
Director with knowledge and experience in professional development and management principles and
such other staff as may be necessary to carry out the mission and duties of the Center. The Executive
Director shall serve at the will and pleasure of the Center Board. The Executive Director of the
Center also shall serve as the chair of the Principals Standards Advisory Council created in section
two-c, article three of this chapter and shall convene regular meetings of this council to effectuate the
purposes of this council.
(g) Effective the first day of July, two thousand five, the position of Executive Director is
abolished, the provisions of subsection (f) of this subsection are void and the provisions of this
subsection become effective. The Governor shall appoint, by and with the advice and consent of the
Senate, a Chief Executive Officer with knowledge and experience in professional development and
management principles. From appropriations to the Center for Professional Development, the Center
Board sets the salary of the Chief Executive Officer. The Center Board, upon the recommendation
of the Chief Executive Officer, may employ other staff necessary to carry out the mission and duties
of the Center. The Chief Executive Officer serves at the will and pleasure of the Governor. Annually,
the Center Board shall evaluate the Chief Executive Officer, and shall report the results to the
Governor. Any reference in this code to the Executive Director of the Center for Professional
Development means the position of Chief Executive Officer established in this subsection. The duties
of the Chief Executive Officer include the following:
(1) Managing the daily operations of the Center;
(2) Ensuring the implementation of the Center's mission;
(3) Ensuring collaboration of the Center with other professional development providers;
(4) Requesting from the Governor and the Legislature any resources or statutory changes that
would help in enhancing the collaboration of all professional development providers in the state, in
advancing the quality of professional development through any other means or both;
(5) Serving as the chair of the Principals Standards Advisory Council created in section two-c,
article three of this chapter and convening regular meetings of this Council to effectuate the purposes
of this Council; and
(5) Other duties as assigned by the Governor or the Center Board.
(h) When practicable, personnel employed by state higher education agencies and state,
regional and county public education agencies shall be made available to the Center to assist in the
operation of projects of limited duration, subject to the provisions of section twenty-four, article two,
chapter eighteen.
(f) (i) The Center shall assist in the delivery of programs and activities pursuant to this article
to meet statewide, and if needed as determined by the goals and Master Plan for Professional Staff
Development established by the State Board pursuant to section twenty-three-a, article two, chapter
eighteen of this code, the local professional development needs of paraprofessionals, teachers,
principals and administrators and may contract with existing agencies or agencies created after the
effective date of this section or others to provide training programs in the most efficient manner.
Existing programs currently based in agencies of the state shall be continued in the agency of their
origin unless the Center establishes a compelling need to transfer or cancel the existing program. The
Center shall recommend to the Governor the transfer of funds to the providing agency, if needed, to
provide programs approved by the Center.
(g) (j) The Center for Professional Development shall implement training and professional
development programs for the Principals Academy based upon the minimum qualities, proficiencies
and skills necessary for principals in accordance with the standards established by the State Board
pursuant to the terms of section two-c, article three of this chapter.
(h) (k) In accordance with section two-c, article three of this chapter, the Center shall be
responsible for paying reasonable and necessary expenses for persons attending the Principals
Academy: Provided, That nothing in this section shall be construed to require any specific level of
funding by the Legislature.
(i) (l) Persons attending the professional development offerings of the Center and such other
courses and services as shall be offered by the Center for Professional Development, except the
Principals Academy shall be assessed fees which shall be less than the full cost of attendance. There
is hereby created in the State Treasury a special revenue account known as the "Center for
Professional Development Fund". All moneys collected by the Center shall be deposited in the fund
for expenditure by the Center Board for the purposes specified in this section. Moneys remaining in
the fund at the end of the fiscal year are subject to reappropriation by the Legislature.
(m) The Center Board shall make collaboration with the State Board in the following areas a priority:
(1) In providing professional development services to those public schools selected by the
State Superintendent pursuant to section three-g, article two-e, chapter eighteen of this code; and
(2) In providing professional development services in any specific subject matter area in which
the State Board, the Legislature or both determines that an initiative in that area is justified due to a
need to increase student achievement in that specific area.
(n) The Center Board shall conduct a professional development study and report any
recommendations to the Governor and the Legislative Oversight Commission on Education
Accountability prior to the first day of January, two thousand six. The recommendations may include
legislation to change existing code if necessary. The study shall include at least the following issues:
(1) The extent to which the collaboration between the state higher education institutions with
teacher preparation programs and the regional education service agencies should include offering
follow-up professional development to the professional development programs offered during the
previous summer;
(2) The items that the State Board should consider in establishing the professional
development goals pursuant to section twenty-three-a, article two, chapter eighteen of this code and
the priority in which the items should be considered; and
(3) Any potential changes that would enhance the effectiveness of training offered by the
Principals Academy.
§18A-3A-2b. The Principals Academy.
(a) There is hereby established within the Center for Professional Development the "Principals
Academy". Training through the Principals Academy shall include at least the following:
(a) (1) Training designed to build within principals the minimum qualities, proficiencies and
skills that will be required of all principals pursuant to the rules of the State Board;
(b) (2) Specialized training and professional development programs for all principals; and
(c) (3) Specialized training and professional development programs for the following principals:
(1) (A) Newly appointed principals;
(2) (B) Principals whose schools have been designated as seriously impaired, which programs
shall commence as soon as practicable following the designation;
(3) (C) Principals subject to improvement plans; and
(4) (D) Principals of schools with significantly different grade level configurations.
(b) The Legislature finds that the quality of the principal of a school is one of the most
important factors in determining the academic achievement of students and that well-trained, highly
qualified principals should be a priority for the state. The Legislature further finds that, although the
Principal's Academy has been effective in training quality leaders of the state's public schools, the
training provided is such an important factor in determining the success of the public schools that the
creation of a new position to coordinate and focus primarily on the Principal's Academy to even
further increase the quality of the training is needed. Therefore, effective the first day of July, two
thousand five, from appropriations to the Center for Professional Development, the Center Board
shall employ and fix the compensation of a Coordinator of the Principals Academy. The Coordinator
shall serve at the will and pleasure of the Center Board. It is the duty of the Coordinator, subject to
direction and oversight by the Center and the Chief Executive Officer, to lead the Principal's
Academy, to focus primarily on the Principals Academy and to make a continuous effort to further
enhance the quality of the training and professional development programs of the Academy. The
Center Board, the Chief Executive Officer or both may assign duties to the coordinator other than
relate to the Principals Academy so long as the Coordinator is able to primarily focus on the
Principals Academy.
§18A-3A-6. Attendance outside the employment term.
A professional educator may not be required to attend the principals academy or any other
program offered through the Center for Professional Development outside his or her employment
term. A professional educator may attend the academy or other program outside his or her employment term by mutual agreement between the Center, the educator, and his or her employer.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE.
§18B-1-3. Transfer of powers, duties, property, obligations, etc.
(a) All powers, duties and authorities transferred to the Board of Regents pursuant to former
provisions of chapter eighteen of this code and transferred to the Board of Trustees and Board of
Directors which were created as the governing boards pursuant to the former provisions of this
chapter and all powers, duties and authorities of the Board of Trustees and Board of Directors, to the
extent they are in effect on the seventeenth day of June, two thousand, are hereby transferred to the
Interim Governing Board created in article one-c of this chapter and shall be exercised and performed
by the Interim Governing Board until the first day of July, two thousand one, as such powers, duties
and authorities may apply to the institutions under its jurisdiction.
(b) Title to all property previously transferred to or vested in the Board of Trustees and the
Board of Directors and property vested in either of the Boards separately, formerly existing under the
provisions of this chapter, are hereby transferred to the Interim Governing Board created in article
one-c of this chapter until the first day of July, two thousand one. Property transferred to or vested
in the Board of Trustees and Board of Directors shall include:
(1) All property vested in the Board of Governors of West Virginia University and transferred
to and vested in the West Virginia Board of Regents;
(2) All property acquired in the name of the State Board of Control or the West Virginia Board
of Education and used by or for the state colleges and universities and transferred to and vested in the
West Virginia Board of Regents;
(3) All property acquired in the name of the State Commission on Higher Education and
transferred to and vested in the West Virginia Board of Regents; and
(4) All property acquired in the name of the Board of Regents and transferred to and vested
in the respective Board of Trustees and Board of Directors.
(c) Each valid agreement and obligation previously transferred to or vested in the Board of
Trustees and Board of Directors formerly existing under the provisions of this chapter is hereby
transferred to the Interim Governing Board until the first day of July, two thousand one, as those
agreements and obligations may apply to the institutions under its jurisdiction. Valid agreements and
obligations transferred to the Board of Trustees and Board of Directors shall include:
(1) Each valid agreement and obligation of the Board of Governors of West Virginia
University transferred to and deemed the agreement and obligation of the West Virginia Board of
Regents;
(2) Each valid agreement and obligation of the State Board of Education with respect to the
state colleges and universities transferred to and deemed the agreement and obligation of the West
Virginia Board of Regents;
(3) Each valid agreement and obligation of the State Commission on Higher Education
transferred to and deemed the agreement and obligation of the West Virginia Board of Regents; and
(4) Each valid agreement and obligation of the Board of Regents transferred to and deemed
the agreement and obligation of the respective Board of Trustees and Board of Directors.
(d) All orders, resolutions and rules adopted or promulgated by the respective Board of
Trustees and Board of Directors and in effect immediately prior to the first day of July, two thousand,
are hereby transferred to the Interim Governing Board until the first day of July, two thousand one,
and shall continue in effect and shall be deemed the orders, resolutions and rules of the Interim
Governing Board until rescinded, revised, altered or amended by the Commission or the governing
boards in the manner and to the extent authorized and permitted by law. Such orders, resolutions and
rules shall include:
(1) Those adopted or promulgated by the Board of Governors of West Virginia University and
in effect immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and
until rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent
authorized and permitted by law;
(2) Those respecting state colleges and universities adopted or promulgated by the West
Virginia Board of Education and in effect immediately prior to the first day of July, one thousand nine
hundred sixty-nine, unless and until rescinded, revised, altered or amended by the Board of Regents
in the manner and to the extent authorized and permitted by law;
(3) Those adopted or promulgated by the State Commission on Higher Education and in effect
immediately prior to the first day of July, one thousand nine hundred sixty-nine, unless and until
rescinded, revised, altered or amended by the Board of Regents in the manner and to the extent
authorized and permitted by law; and (4) Those adopted or promulgated by the Board of
Regents prior to the first day of July, one thousand nine hundred eighty-nine, unless and until
rescinded, revised, altered or amended by the respective Board of Trustees or Board of Directors in
the manner and to the extent authorized and permitted by law.
(e) Title to all real property transferred to or vested in the Interim Governing Board pursuant
to this section of the code is hereby transferred to the Commission effective the first day of July, two
thousand one. The board of governors for each institution may request that the Commission transfer
title to the board of governors of any real property specifically identifiable with that institution or the
Commission may initiate the transfer. Any such request must be made within two years of the
effective date of this section and be accompanied by an adequate legal description of the property.
In the case of real property that is specifically identifiable with Marshall University or West Virginia
University, the Commission shall transfer title to all real property, except real property that is used
jointly by institutions or for statewide programs under the jurisdiction of the Commission or the
Council, to the Board of Governors of Marshall University or West Virginia University, as
appropriate, upon receipt of a request from the appropriate governing board accompanied by an
adequate legal description of the property.
The title to any real property that is jointly utilized by institutions or for statewide programs
under the jurisdiction of the Commission or the Council shall be retained by the Commission.
(f) Ownership of or title to any other property, materials, equipment or supplies obtained or purchased by the Interim Governing Board or the previous governing boards on behalf of an
institution is hereby transferred to the board of governors of that institution effective the first day of
July, two thousand one.
(g) Each valid agreement and obligation previously transferred or vested in the Interim
Governing Board and which was undertaken or agreed to on behalf of an institution or institutions
is hereby transferred to the board of governors of the institution or institutions for whose benefit the
agreement was entered into or the obligation undertaken effective the first day of July, two thousand
one.
(1) The obligations contained in revenue bonds issued by the previous governing boards under
the provisions of section eight, article ten of this chapter and article twelve-b, chapter eighteen of this
code are hereby transferred to the Commission and each institution shall transfer to the Commission
those funds the Commission determines are necessary to pay that institution's share of bonded
indebtedness.
(2) The obligations contained in revenue bonds issued on behalf of a state institution of higher
education pursuant to any other section of this code is hereby transferred to the board of governors
of the institution on whose behalf the bonds were issued.
(h) All orders, resolutions, policies and rules:
(1) Adopted or promulgated by the respective Board of Trustees, Board of Directors or Interim
Governing Board and in effect immediately prior to the first day of July, two thousand one, are hereby
transferred to the Commission effective the first day of July, two thousand one, and continue in effect
until rescinded, revised, altered, amended or transferred to the governing boards by the Commission
as provided in this section and in section six of this article.
(2) Adopted or promulgated by the Commission relating solely to community and technical
colleges or community and technical college education, or rules which the Council finds necessary
for the exercise of its lawful powers and duties pursuant to the provisions of this chapter, may be
adopted by the Council and continue in effect until rescinded, revised, altered, amended or transferred to the governing boards under the jurisdiction of the Council pursuant to section six of this article.
Nothing in this section requires the initial rules of the Commission that are adopted by the Council
to be promulgated again under the procedure set forth in article three-a, chapter twenty-nine-a of this
code unless such rules are rescinded, revised, altered or amended.
(3) Adopted or promulgated by the Commission relating to multiple types of public
institutions of higher education or community and technical college education as well as baccalaureate
and post-baccalaureate education are transferred to the Council in part as follows:
(A) That portion of the rule relating solely to community and technical colleges or community
and technical college education is transferred to the Council and continues in effect until rescinded,
revised, altered, amended or transferred to the governing boards by the Council as provided in this
section and in section six of this article;
(B) That portion of the rule relating to institutions or education other than community and
technical colleges is retained by the Commission and continues in effect until rescinded, revised,
altered, amended or transferred to the governing boards by the Commission as provided in this section
and in section six of this article.
(i) The Commission may, in its sole discretion, transfer any rule, other than a legislative rule,
to the jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind,
revise, alter or amend any rule so transferred pursuant to rules adopted by the Commission pursuant
to section six of this article.
The Council may, in its sole discretion, transfer any rule, other than a legislative rule, to the
jurisdiction of the governing boards of the institutions under its jurisdiction who may rescind, revise,
alter or amend any rule so transferred pursuant to rules adopted by the Council pursuant to section
six of this article.
(j) As to any title, agreement, obligation, order, resolution, rule or any other matter about
which there is some uncertainty, misunderstanding or question, the matter shall be summarized in
writing and sent to the Commission which shall make a determination regarding such matter within thirty days of receipt thereof.
(k) Rules or provisions of law which refer to other provisions of law which were repealed,
rendered inoperative or superseded by the provisions of this section shall remain in full force and
effect to such extent as may still be applicable to higher education and may be so interpreted. Such
references include, but are not limited to, references to sections and prior enactments of article
twenty-six, chapter eighteen of this code and code provisions relating to retirement, health insurance,
grievance procedures, purchasing, student loans and savings plans. Any determination which needs
to be made regarding applicability of any provision of law shall first be made by the Commission.
§18B-1-6. Rulemaking.
(a) The Commission is hereby empowered to promulgate, adopt, amend or repeal rules, in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code, subject to the
provisions of section three of this article.
(b) The Council is hereby empowered to promulgate, adopt, amend or repeal rules, in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code and subject to the
provisions of section three of this article. This grant of rule-making power extends only to those areas
over which the Council has been granted specific authority and jurisdiction by law.
(c) As it relates to the authority granted to governing boards of state institutions of higher
education to promulgate, adopt, amend or repeal any rule under the provisions of this code:
(1) "Rule" means any regulation, guideline, directive, standard, statement of policy or
interpretation of general application which has institutionwide effect or which affects the rights,
privileges or interests of employees, students or citizens. Any regulation, guideline, directive,
standard, statement of policy or interpretation of general application that meets this definition is a rule
for the purposes of this section.
(2) Regulations, guidelines or policies established for individual units, divisions, departments
or schools of the institution, which deal solely with the internal management or responsibilities of a
single unit, division, department or school or with academic curricular policies that do not constitute a mission change for the institution, are excluded from this subsection, except for the requirements
relating to posting.
(c) (3) The Commission and Council each shall promulgate a rule to guide the development
and approval of rules guidelines and other policy statements made by their respective governing
boards, including the governing boards of Marshall University and West Virginia University. The
rules promulgated by the Commission and Council shall include, but are not limited to, the following
provisions which shall be included in the rule on rules adopted by each governing board of a state
institution of higher education:
(1) (A) A procedure to ensure that public notice is given and that the right of interested parties
to have a fair and adequate opportunity to respond is protected, including providing for a thirty-day
public comment period prior to final adoption of a rule;
(2) (B) Designation of a single location where all proposed and approved rules, guidelines and
other policy statements are posted and can be accessed by the public; and
(3) (C) A procedure to maximize internet access to all proposed and approved rules, guidelines
and other policy statements to the extent technically and financially feasible.
(d) On and after the effective date of this section, and notwithstanding any other provision of
this code to the contrary, any rule heretofore required by law to be promulgated as a legislative rule
prior to the first day of July, two thousand one, may not be considered to be a legislative rule for the
purposes of article three-a, chapter twenty-nine-a of this code except for the following:
(1) The legislative rule required by subsection (c), section eight of this article;
(2) The legislative rule required by section eight-a of this article;
(3) The legislative rule required by section two, article one-a of this chapter;
(4) The legislative rule required by section four, article one-b of this chapter;
(5) The legislative rule required by section one, article three, chapter eighteen-c of this code;
(6) The legislative rule required by section one, article four, chapter eighteen-c of this code;
(7) The legislative rule required by section seven, article five, chapter eighteen-c of this code; and
(8) The legislative rule required by section one, article six, chapter eighteen-c of this code.
(e) (d) Nothing in this section requires that any rule reclassified or transferred by the
Commission or the Council under this section be promulgated again under the procedures set out in
article three-a, chapter twenty-nine-a of this code unless the rule is amended or modified.
(f) (e) The Commission and Council each shall file with the Legislative Oversight
Commission on Education Accountability any rule it proposes to promulgate, adopt, amend or repeal
under the authority of this article.
(f) The governing boards of Marshall University and West Virginia University, respectively,
shall promulgate and adopt any rule which they are required to adopt by this chapter or chapter
eighteen-c of this code no later than the first day of July, two thousand six. On and after this date:
(1) Any rule of either governing board which meets the definition set out in subsection (c) of
this section and which has not been promulgated and adopted by formal vote of the appropriate
governing board is void and may not be enforced;
(2) Any authority granted by this code which inherently requires the governing board to
promulgate and adopt a rule is void until the governing board complies with the provisions of this
section.
(3) Within thirty days of the adoption of a rule, including repeal or amendment of an existing
rule, the governing boards of Marshall University and West Virginia University, respectively, shall
furnish to the Commission or the Council, as appropriate, a copy of each rule which has been formally
adopted;
(g) Not later than the first day of October, two thousand five, and annually thereafter, each
governing board of a state institution of higher education shall file with the Commission or the
Council, as appropriate, a list of all institutional rules that were in effect for that institution on the first
day of July of that year, including the most recent date on which each rule was considered and
adopted, amended or repealed by the governing board. For all rules adopted, amended or repealed after the effective date of this section, the list shall include a statement by the chair of the governing
board certifying that the governing board has complied with the provisions of this section when each
listed rule was adopted.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST
VIRGINIA.
§18B-1A-2. Institutional compacts with state institutions of higher education; establishment
and review process.
(a) Each state college and university shall prepare an institutional compact for submission to
the Commission. Each community and technical college shall prepare an institutional compact for
submission to the Council. When the process herein provided is completed, the institutional
compacts shall form the agreements between the institutions of higher education and the Commission
or Council, respectively, and, ultimately, between the institutions of higher education and the people
of West Virginia on how the institutions will use their resources to address the intent of the
Legislature and the goals set forth in section one-a, article one of this chapter. The compacts shall
contain the following:
(1) A step-by-step process to accomplish the intent of the Legislature and the goals set forth
in section one-a, article one of this chapter as organized by the Commission and Council. The
step-by-step process shall be delineated by objectives and shall set forth a time line for achieving the
objectives which shall, where applicable, include benchmarks to measure institutional progress as
defined in subsection (e) of this section.
(2) A determination of the mission of the institution which specifically addresses changes, as
applicable, in the areas of research, graduate education, baccalaureate education, revised admission
requirements, community and technical colleges and such other areas as the Commission or Council
determines appropriate. In the determination of mission, the institutions and the Commission or
Council shall consider the report completed by the national center for higher education management
systems pursuant to the legislative study as provided in section seven, article three of this chapter;
(3) A plan which is calculated to make any changes in institutional mission and structure
within a six-year period;
(4) A statement of the geographic areas of responsibility, where applicable, for each goal to
be accomplished as provided in subsection (d) of this section;
(5) A detailed statement of how the compact is aligned with and will be implemented in
conjunction with the master plan of the institution;
(6) Such other items, requirements or initiatives, required by the Commission or Council,
designed to accomplish the intent of the Legislature and the goals set forth in section one-a, article
one of this chapter or other public policy goals established by the Commission or Council.
(b) Each institutional compact shall be updated annually and shall follow the same general
guidelines contained in subsection (a) of this section.
(c) Development and updating of the institutional compacts is subject to the following:
(1) The ultimate responsibility for developing and updating the institutional compacts at the
institutional level resides with the institutional board of advisors or the board of governors, as
appropriate;
(2) The ultimate responsibility for developing and adopting the final version of the state
college and university institutional compacts resides with the Commission. The ultimate
responsibility for developing and adopting the final version of the community and technical college
institutional compacts resides with the Council;
(3) Each institution shall submit its compact to the Commission or Council annually by the
fifteenth day of November;
(4) The Commission and Council shall review each compact of the institutions under their
respective jurisdictions and either adopt the compact or return it with specific comments for change
or improvement. The Commission and Council, as appropriate, shall continue this process as long
as each the Commission or Council as applicable, considers advisable;
(5) By the first day of May annually, if the institutional compact of any institution as presented by that institution is not adopted by the Commission, or Council, then the Commission or Council
is empowered and directed to develop and adopt the institutional compact for the institution and the
institution is bound by the compact so adopted; and
(6) As far as practicable, the Commission and Council each shall establish uniform processes
and forms for the development and submission of the institutional compacts by the institutions under
their respective jurisdictions, including the state institutions of higher education known as Marshall
University and West Virginia University. As a part of this function, the Commission and Council
shall organize the statements of legislative intent and goals contained in section one-a, article one of
this chapter in a manner that facilitates the purposes of this subdivision and the purposes of this
section.
(d) Assignment of geographic areas of responsibility. --
(1) The Commission and Council shall assign geographic areas of responsibility to the state
institutions of higher education under their respective jurisdictions its jurisdiction, except for the state
institutions of higher education known as Marshall University and West Virginia University. For
institutions other than the state institutions of higher education known as Marshall University and
West Virginia University, the geographic areas of responsibility are made as a part of their
institutional compacts to ensure that all areas of the state are provided necessary programs and
services to achieve the public policy agenda.
(2) Pursuant to the provisions of section four, article three-c of this chapter, the Council shall
assign geographic areas of responsibility to the state institutions of higher education under its
jurisdiction, including the administratively linked institution known as Marshall Community and
Technical College, the administratively linked institution known as the Community and Technical
College at West Virginia University Institute of Technology and the regional campus known as West
Virginia University at Parkersburg.
(3) The geographic areas of responsibility for the state institutions of higher education known
as Marshall University and West Virginia University are assigned by the Legislature.
(4) The benchmarks established in the institutional compacts shall include measures of
programs and services by geographic area throughout the assigned geographic area of responsibility.
(e) The compacts shall contain benchmarks used to determine progress toward meeting the
goals established in the compacts. The benchmarks shall meet the following criteria:
(1) They shall be as objective as possible;
(2) They shall be directly linked to the goals in the compacts;
(3) They shall be measured by the indicators described in subsection (f) of this section; and
(4) Where applicable, they shall be used to measure progress in geographic areas of
responsibility.
(f) The Commission and Council each shall establish by legislative rule indicators which
measure the degree to which the goals and objectives set forth in section one-a, article one of this
chapter are being addressed and met by the institutions under their respective jurisdictions. The
benchmarks established in subsection (e) of this section shall be measured by the indicators.
(1) The Legislature finds that an emergency exists; therefore, not later than the first day of
October, two thousand four, the Council shall file as an emergency rule a legislative rule pertaining
to benchmarks and indicators in accordance with the provisions of article three-a, chapter
twenty-nine-a of this code. The rule rules pertaining to benchmarks and indicators in effect for the
Commission and the Council at the time of on the effective date of this section remains remain in
effect for the institutions under its jurisdiction their respective jurisdictions, including the state
institutions of higher education known as Marshall University and West Virginia University.
(2) The legislative rules shall set forth at the least the following as pertains to all state
institutions of higher education:
(A) The indicators used to measure the degree to which the goals and objectives are being met;
(B) Uniform definitions for the various data elements to be used in establishing the indicators;
(C) Guidelines for the collection and reporting of data; and
(D) Sufficient detail within the benchmarks and indicators to:
(i) Provide measurable evidence that the pursuits of the institution are targeting the
educational needs of the citizens of the state and the components of the compacts and master plans;
(ii) Delineate the goals and benchmarks for an institution so that the Commission, or Council
or Legislative Oversight Commission can precisely measure the degree to which progress is being
made toward achieving the goals for post-secondary education provided in section one-a, article one
of this chapter; and
(iii) Distinctly identify specific goals within the master plan or compact of an institution that
are not being met or toward which sufficient progress is not being made.
(3) In addition to any other requirement, the legislative rule established by the Council shall
set forth at the least the following as pertains to community and technical college education:
(A) Benchmarks and indicators which are targeted to identify:
(i) The degree to which progress is being made by institutions toward meeting the goals for
post-secondary education and the essential conditions provided in section three, article three-c of this
chapter;
(ii) Information and data necessary to be considered by the Council in making the
determination required by section three, article two-c of this chapter;
(iii) The degree to which progress is being made in the areas considered by the Council for
the purpose of making the determination required by section three, article two-c of this chapter; and
(B) Sufficient detail within the benchmarks and indicators to provide clear evidence to support
an objective determination by the Council that an institution's progress toward achieving the goals
for post-secondary education and the essential conditions is so deficient that implementation of the
provisions of section four, article two-c of this chapter is warranted and necessary.
(g) The Commission or the Council, as appropriate, shall approve the master plans developed
by the boards of governors and the institutional boards of advisors pursuant to section four, article
two-a of this chapter or section one, article six of this chapter, as appropriate.
§18B-1A-6. Graduate education.
(a) Intent. -- It is the intent of the Legislature to address the need for high quality graduate
education programs to be available throughout the state.
(b) Findings. -- The Legislature makes the following findings:
(1) Since West Virginia ranks below its competitor states in graduate degree production,
particularly in the areas that are important to the state's competitive position in the new economy of
the twenty-first century, there is a considerable need for greater access to graduate education,
especially at the master's degree level;
(2) There is a significant disparity in access to part-time graduate degree programs among the
different regions of the state and part-time graduate enrollments are heavily concentrated in the
counties immediately surrounding Marshall University and West Virginia University;
(3) There is a particular need for increased access to graduate programs linked directly to the
revitalization of the regional economies of the state; and
(4) There is a particular need for improved quality and accessibility of preservice and
in-service programs for teachers in subject matter fields.
(c) In order to meet the need for graduate education, the Commission shall be is responsible
for accomplishing the following:
(1) Ensuring that West Virginia University and Marshall University expand assist in the
expansion of access to master's degree programs throughout West Virginia. with. These institutions
shall place a strong emphasis on collaboration with the baccalaureate colleges and community and
technical colleges in each region when funds are available;
(2) Ensuring that any institution providing a master's degree program under the provisions of
this section provides a meaningful, coherent program by offering courses in such a way that students,
including place-bound adults, have ample opportunity to complete a degree in a reasonable period of
time;
(3) Focusing on providing courses that enhance the professional skills of teachers in their
subject areas; and
(4) Ensuring that programs are offered in the most cost-effective manner to expand access
throughout the region and the state; and
(5) Determining the graduate program needs of each region.
(d) Bluefield State College, Concord College University, Fairmont State College University,
Glenville State College, Shepherd College University, West Liberty State College and West Virginia
State College University shall meet the need for graduate education in their regions by following the
procedures outlined below pursuant to this subsection and subsection (c) of this section.
(1) If an institution's proposal to offer a Master's degree receives the approval of the
institution's regional accrediting association, that Master's degree may be offered solely by the
institution.
(2) If an institution does not receive the approval of its regional accrediting association for a
proposal to offer a Master's degree, that institution may broker or collaborate with another higher
education institution to develop a revised proposal for offering that brokered or collaborative Master's
degree.
(1) The institutions shall develop as graduate centers for their regions to broker access to
graduate programs by contracting with accredited colleges and universities in and out of the state.
These programs shall be related directly to each region's education and economic needs.
(2) The institutions may begin collaborative programs with other institutions leading to the
granting of master's degrees in selected areas that are demonstrated to be related directly to the needs
of their regions and that draw on faculty strengths. An institution may continue to offer collaborative
programs aimed at meeting the documented needs with the approval of the Commission or, if a
sustained need still exists, the institution may move to the next level.
(3) If the graduate education needs of the region have not been met through brokering and
collaborative programs, the institution may explore the option of beginning its own graduate-level
program leading to the granting of a master's degree. The institution may begin its own master's
degree program if it can meet the following conditions as determined by the Commission:
(A) Demonstrate that the institution has successfully completed each of the steps required
before exploring development of its own master's degree program;
(B) Provide evidence based on experience gained in the brokering and collaborative
arrangements that a sustained demand exists for the program;
(C) Demonstrate that the baccalaureate institution has the capacity to provide the program;
(D) Demonstrate that the core mission of the baccalaureate institution will not be impaired
by offering the graduate program;
(E) Provide evidence that the graduate program has a reasonable expectation of being
accredited;
(F) Demonstrate that the need documented in subdivision (B) of this subsection is not
currently being met by any other state institution of higher education; and
(G) The Commission may designate one of the institutions listed in subsection (d) of this
section to develop and implement no more than four of its own masters level programs as a pilot
project: Provided, That the selected institution shall move toward and achieve regional accreditation
of the master's program within a reasonable time as determined by the Commission. The institution
shall be selected based on the following:
(i) Sufficient credentialed faculty to offer quality programs in the areas selected;
(ii) Sufficient unmet demand for the programs; and
(iii) Sustainable unmet demand based on generally accepted projections for population growth
in the region served by the institution.
The programs authorized by this clause may not be restricted by the provisions of subdivisions
(1), (2) and (3) of this subsection nor by the provisions of subsection (e) of this section.
(e) There is an urgent need for master's degree programs for teachers in disciplines or subject
areas, such as mathematics, science, history, literature, foreign languages and the arts. Currently,
master's-level courses in education that are offered in the regions served by the state universities are
primarily in areas such as guidance and counseling, administration, special education and other disciplines unrelated to teaching in subject areas. If this need is not being met in a region through the
procedure established in subsection (d) of this section, then the graduate center in that region may
plan a master's degree program in education focused on teaching in subject area fields in which the
demand is not being met. No institution may begin a graduate program under the provisions of this
section until the program has been reviewed and approved by the Commission. The Commission
shall approve only those programs, as authorized by this subsection, that emphasize serving the needs
of teachers and schools in the colleges' immediate regions. In determining whether a program should
be approved, the Commission also shall rely upon the recommendations of the statewide task force
on teacher quality provided for in section eight, article fourteen of this chapter.
(f) The Commission shall review all graduate programs being offered under the provisions
of this section and, using the criteria established for program startup in subsection (d) of this section,
determine which programs should be discontinued.
(g) At least annually At least biennually beginning two thousand seven and continuing through
two thousand thirteen, the governing boards shall evaluate graduate programs developed pursuant to
the provisions of this section and report to the Commission on the following:
(1) The number of programs being offered and the courses offered within each program;
(2) The disciplines in which programs are being offered;
(3) The locations and times at which courses are offered;
(4) The number of students enrolled in the program; and
(5) The number of students who have obtained master's degrees through each program.
The governing boards shall provide the Commission with any additional information the
Commission requests in order to make a determination on the viability of a program.
(h) In developing any graduate program under the provisions of this section, institutions shall
consider delivering courses at times and places convenient to adult students who are employed full
time. Institutions shall place an emphasis on extended degree programs, distance learning and
off-campus centers which utilize the cost-effective nature of extending existing university capacity to serve the state rather than duplicating the core university capacity and incurring the increased cost
of developing master's degree programs at other institutions throughout the state.
(i) Brokering institutions shall invite proposals from other public institutions of higher
education for service provision prior to contracting with other institutions: Provided, That if
institutions propose providing graduate programs in service areas other than in their responsibility
district, the institution seeking to establish a program shall work through the district's lead institution
in providing those services.
(j) In addition to the approval required by the Commission, authorization for any institution
to offer a master's degree program under the provisions of this section is subject to the formal
approval processes established by the governing boards.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-4. Powers and duties of higher education policy Commission.
(a) The primary responsibility of the Commission is to develop, establish and implement
policy that will achieve the goals and objectives found in section one-a, article one of this chapter.
The Commission shall exercise its authority and carry out its responsibilities in a manner that is
consistent and not in conflict with the powers and duties assigned by law to the West Virginia Council
for community and technical college education and the powers and duties assigned to the governing
boards of Marshall University and West Virginia University, respectively. To that end, the
Commission has the following powers and duties relating to the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article
one-a of this chapter to address major challenges facing the state, including, but not limited to, the
goals and objectives found in section one-a, article one of this chapter and including specifically those
goals and objectives pertaining to the compacts created pursuant to section two, article one-a of this
chapter and to develop and implement the master plan described in section nine of this article for the
purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly with the Council of a financing policy for higher education in West Virginia, except that the governing boards of Marshall University
and West Virginia University each shall develop a financing policy for the state institutions of higher
education known as Marshall University and West Virginia University, respectively, without the
approval of the Commission. Each The policy shall meet the following criteria:
(A) Provide an adequate level of education and general funding for institutions pursuant to
section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical
resources and deferred maintenance;
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda,
including, but not limited to, those found in section one-a, article one of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen capacity for support of community
and technical college education established by the West Virginia Council for Community and
Technical College Education pursuant to the provisions of section six, article two-b of this chapter;
(3) In collaboration with the Council, create a policy leadership structure capable of the
following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range
public policy agenda. In developing the agenda, the Commission and Council shall seek input from
the Legislature and the Governor and specifically from the State Board of Education and local school
districts in order to create the necessary linkages to assure smooth, effective and seamless movement
of students through the public education and post-secondary education systems and to ensure that the
needs of public school courses and programs can be fulfilled by the graduates produced and the
programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the individual
institutions of higher education; and
(C) Holding the higher education institutions and the higher education systems as a whole
accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact, subject to the provisions of section two,
article one-a of this chapter;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative leadership
and the Legislative Oversight Commission on Education Accountability;
(7) Jointly with the Council, promulgate legislative rules pursuant to article three-a, chapter
twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three,
article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to measure
institutional achievement towards state policy priorities and institutional missions pursuant to section
two, article one-a of this chapter;
(10) Annually report to the Legislature and to the Legislative Oversight Commission on
Education Accountability during the January interim meetings on a date and at a time and location
to be determined by the President of the Senate and the Speaker of the House of Delegates. The
report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year,
including, but not limited to, progress in meeting goals stated in the compacts and progress of the
institutions and the higher education system as a whole in meeting the goals and objectives set forth
in section one-a, article one of this chapter;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this chapter
and recommendations for any changes necessary to assure access to high-quality, high-demand
education programs for West Virginia residents;
(C) The priorities established for capital investment needs pursuant to subdivision (11) of this subsection and the justification for such priority;
(D) Recommendations of the Commission for statutory changes needed to further the goals
and objectives set forth in section one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for capital investments and for
determining priorities for these investments, except the governing boards of Marshall University and
West Virginia University, respectively, may each develop a formal process for identifying capital
needs and priorities for the state institutions of higher education known as Marshall University and
West Virginia University without the approval of the Commission. It is the responsibility of the
Commission to assure a fair distribution of funds for capital projects between the Commission and
the Council. To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the Council for capital investment for the
institutions under the Council's jurisdiction pursuant to subsection (b), section six, article two-b of
this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on
which the list was received;
(C) Select a minimum of three projects from the list submitted by the Council to be included
on the ranked list established by the Commission. At least one of the three projects selected must
come from the top two priorities established by the Council.
(12) Maintain guidelines for institutions to follow concerning extensive capital projects except
the governing boards of Marshall University and West Virginia University are not subject to the
provisions of this subdivision as it relates to the state institutions of higher education known as
Marshall University and West Virginia University. The guidelines shall provide a process for
developing capital projects, including, but not limited to, the notification by an institution to the
Commission of any proposed capital project which has the potential to exceed one million dollars in
cost. Such a project may not be pursued by an institution without the approval of the Commission.
An institution may not participate directly or indirectly with any public or private entity in any capital project which has the potential to exceed one million dollars in cost;
(13) Acquire legal services as are considered necessary, including representation of the
Commission, its institutions, employees and officers before any court or administrative body,
notwithstanding any other provision of this code to the contrary. The counsel may be employed either
on a salaried basis or on a reasonable fee basis. In addition, the Commission may, but is not required
to, call upon the Attorney General for legal assistance and representation as provided by law;
(14) Employ a Chancellor for Higher Education pursuant to section five of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and
responsibilities of the Commission and the Council, in accordance with the provisions of article four
of this chapter;
(16) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
(17) Advise and consent in the appointment of the presidents of the institutions of higher
education under its jurisdiction pursuant to section six of this article. The role of the Commission
in approving an institutional president is to assure through personal interview that the person selected
understands and is committed to achieving the goals and objectives as set forth in the institutional
compact and in section one-a, article one of this chapter;
(18) Approve the total compensation package from all sources for presidents of institutions
under its jurisdiction, as proposed by the governing boards. The governing boards must obtain
approval from the Commission of the total compensation package both when institutional presidents
are employed initially and afterward when any change is made in the amount of the total
compensation package;
(19) Establish and implement the policy of the state to assure that parents and students have
sufficient information at the earliest possible age on which to base academic decisions about what is
required for students to be successful in college, other post-secondary education and careers related,
as far as possible, to results from current assessment tools in use in West Virginia;
(20) Approve and implement a uniform standard jointly with the Council to determine which students shall be placed in remedial or developmental courses. The standard shall be aligned with
college admission tests and assessment tools used in West Virginia and shall be applied uniformly
by the governing boards throughout the public higher education system. The chancellors shall
develop a clear, concise explanation of the standard which they shall communicate to the State Board
of Education and the State Superintendent of schools;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of
this subsection;
(22) Jointly with the Council, develop and implement an oversight plan to manage systemwide
technology such as the following:
(A) Expanding distance learning and technology networks to enhance teaching and learning,
promote access to quality educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional students, to provide services to
business and industry and increase the management capabilities of the higher education system.
(C) Notwithstanding any other provision of law or this code to the contrary, the Council,
Commission and state institutions of higher educations are not subject to the jurisdiction of the Chief
Technology Officer for any purpose.
(23) Establish and implement policies and procedures to ensure that students may transfer and
apply toward the requirements for a bachelor's degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state community and technical college with as few
requirements to repeat courses or to incur additional costs as is consistent with sound academic
policy;
(24) Establish and implement policies and procedures to ensure that students may transfer and
apply toward the requirements for a degree the maximum number of credits earned at any regionally
accredited in-state or out-of-state higher education institution with as few requirements to repeat
courses or to incur additional costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students may transfer and apply toward the requirements for a master's degree the maximum number of credits earned at any
regionally accredited in-state or out-of-state higher education institution with as few requirements to
repeat courses or to incur additional costs as is consistent with sound academic policy;
(26) Establish and implement policies and programs, in cooperation with the Council and the
institutions of higher education, through which students who have gained knowledge and skills
through employment, participation in education and training at vocational schools or other education
institutions, or internet-based education programs, may demonstrate by competency-based assessment
that they have the necessary knowledge and skills to be granted academic credit or advanced
placement standing toward the requirements of an associate degree or a bachelor's degree at a state
institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on
education and workforce development-related topics, as in the Commission's discretion is critical for
the performance of their duties as members, for the purpose of keeping abreast of education trends
and policies to aid it in developing the policies for this state to meet the established education goals
and objectives pursuant to section one-a, article one of this chapter;
(28) Develop, establish and implement guidelines a rule for higher education governing boards
and institutions to follow when considering capital projects. The guidelines shall include, but not be
limited to, the following
(A) That the governing boards and institutions not approve or promote projects that give
competitive advantage to new private sector projects over existing West Virginia businesses, unless
the Commission determines such private sector projects are in the best interest of the students, the
institution and the community to be served; and
(B) That assure that the governing boards and institutions do not approve or promote capital
projects involving private sector businesses which would have the effect of reducing property taxes
on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due
on newly developed or future properties;
(29) Consider and submit to the appropriate agencies of the executive and legislative branches
of state government a budget that reflects recommended appropriations from the Commission and the
institutions under its jurisdiction, except for the state institutions of higher education known as
Marshall University and West Virginia University. The governing boards of Marshall University and
West Virginia University each shall consider and submit to the Commission a single budget for the
state institutions of higher education know as Marshall University and West Virginia University,
respectively, that reflects recommended appropriations for those institutions. The Commission shall
submit as part of its budget proposal the separate recommended appropriations it received from those
governing boards. The Commission shall submit as part of its budget proposal the separate
recommended appropriations it received from the Council, both for the Council and the institutions
under the Council's jurisdiction. The Commission annually shall submit the proposed institutional
allocations based on each institution's progress toward meeting the goals of its institutional compact;
(30) The Commission has the authority to assess institutions under its jurisdiction, including
the state institutions of higher education known as Marshall University and West Virginia University,
for the payment of expenses of the Commission or for the funding of statewide higher education
services, obligations or initiatives related to the goals set forth for the provision of public higher
education in the state;
(31) Promulgate rules allocating reimbursement of appropriations, if made available by the
Legislature, to institutions of higher education for qualifying noncapital expenditures incurred in the
provision of services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this code requires appointments
from the State College System Board of Directors or the University of West Virginia System Board
of Trustees which were abolished effective the thirtieth day of June, two thousand, except in those
cases where the required appointment has a specific and direct connection to the provision of
community and technical college education, the appointment shall be made by the Council.
Notwithstanding any provisions of this code to the contrary, the Commission or the Council may appoint one of its own members or any other citizen of the state as its designee. The Commission and
Council shall appoint the total number of persons in the aggregate required to be appointed by these
previous governing boards;
(33) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and
section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the
purposes of this chapter. The Commission and the Council shall promulgate a uniform joint
legislative rule for the purpose of standardizing, as much as possible, the administration of personnel
matters among the institutions of higher education;
(34) Determine when a joint rule among the governing boards of the institutions under its
jurisdiction is necessary or required by law and, in those instances, in consultation with the governing
boards of all the institutions under its jurisdiction, promulgate the joint rule;
(35) In consultation with the Governing Boards of Marshall University and West Virginia
University, implement a policy jointly with the Council whereby course credit earned at a community
and technical college transfers for program credit at any other state institution of higher education and
is not limited to fulfilling a general education requirement; and
(36) Promulgate a joint rule with the Council establishing tuition and fee policy for all
institutions of higher education, other than state institutions of higher education known as Marshall
University and West Virginia University which are subject to the provisions of section one, article
ten of this chapter. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the Commission and Council consider appropriate; and
(37) Implement general disease awareness initiatives to educate parents and students,
particularly dormitory residents, about meningococcal meningitis; the potentially life-threatening dangers of contracting the infection; behaviors and activities that can increase risks; measures that
can be taken to prevent contact or infection; and potential benefits of vaccination. The Commission
shall encourage institutions that provide medical care to students to provide access to the vaccine for
those who wish to receive it.
(b) In addition to the powers and duties listed in subsection (a) of this section, the Commission
has the following general powers and duties related to its role in developing, articulating and
overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership including a distinct and visible role in setting the state's
policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a
geographical region thereof;
(3) Development and implementation of institutional mission definitions including use of
incentive funds to influence institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions under its jurisdiction except state
institutions of higher education known as Marshall University and West Virginia University,
including the use of institutional missions as a template to judge the appropriateness of both new and
existing programs and the authority to implement needed changes: Provided, That the commission
shall review and approve academic programs of the state institutions of higher education known as
Marshall University and West Virginia University that are offered off the campus of those
institutions;
(5) Development of budget and allocation of resources, including reviewing and approving
institutional operating budgets and capital budgets for all institutions, except for the state institutions
of higher education known as Marshall University and West Virginia University, and distributing
incentive and performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the vice
chancellor for administration, including promulgation of any rules necessary to administer those programs;
(7) Serving as the agent to receive and disburse public funds when a governmental entity
requires designation of a statewide higher education agency for this purpose;
(8) Development, establishment and implementation of information, assessment and
accountability systems, including maintenance of statewide data systems that facilitate long-term
planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the Council, developing, establishing and implementing policies for licensing
and oversight for both public and private degree-granting and nondegree-granting institutions that
provide post-secondary education courses or programs in the state pursuant to the findings and policy
recommendations to be determined as set forth in required by section eleven of this article;
(10) Development, implementation and oversight of statewide and region-wide projects and
initiatives related to providing post-secondary education at the baccalaureate level and above such
as those using funds from federal categorical programs or those using incentive and
performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties of the Commission particularly in
the areas of research, data collection and analysis, planning, policy analysis, program review and
approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided for in subsections (a) and (b) of this section
and any other powers and duties as may be assigned to it by law, the Commission has such other
powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The Commission is authorized to withdraw specific powers of any governing board of an
institution under its jurisdiction for a period not to exceed two years, if the Commission makes a
determination that:
(1) The governing board has failed for two consecutive years to develop an institutional
compact as required in article one of this chapter;
(2) The Commission has received information, substantiated by independent audit, of significant mismanagement or failure to carry out the powers and duties of the board of governors
according to state law; or
(3) Other circumstances which, in the view of the Commission, severely limit the capacity of
the board of governors to carry out its duties and responsibilities.
(4) The period of withdrawal of specific powers may not exceed two years during which time
the Commission is authorized to take steps necessary to reestablish the conditions for restoration of
sound, stable and responsible institutional governance.
§18B-1B-5. Employment of Chancellor for Higher Education; office; powers and duties
generally; employment of vice chancellors.
(a) The Commission, created pursuant to section one of this article, shall employ a Chancellor
for Higher Education who is the Chief Executive Officer of the Commission and who serves at its
will and pleasure.
(b) The Commission shall set the qualifications for the position of chancellor and shall
conduct a thorough nationwide search for qualified candidates. A qualified candidate is one who
meets at least the following criteria:
(1) Possesses an excellent academic and administrative background;
(2) Demonstrates strong communication skills;
(3) Has significant experience and an established national reputation as a professional in the
field of higher education;
(4) Is free of institutional or regional biases; and
(5) Holds or retains no other administrative position within a system of higher education while
employed as chancellor.
(c) The Commission shall conduct written performance evaluations of the chancellor annually
and may offer the chancellor a contract not to exceed three years. At the end of each contract period,
the Commission shall review the evaluations and make a determination by vote of its members on
continuing employment and compensation level.
(d) When filling a vacancy in the position of chancellor, the Commission shall enter into an
initial employment contract for one year with the candidate selected. At the end of the initial contract
period, and each contract period thereafter, the Commission shall review the evaluations and make
a determination by vote of its members on continuing employment and compensation level for the
chancellor.
(e) The chancellor shall be compensated on a basis in excess of, but not to exceed twenty
percent greater than, the base salary of any president of a state institution of higher education or the
administrative head of a governing board The Commission shall determine the compensation of the
Chancellor for Higher Education. The Commission may not increase the salary of the individual
employed as Chancellor on the effective date of this section.
(f) The Commission may employ a Vice Chancellor for Health Sciences who serves at the will
and pleasure of the Commission. The Vice Chancellor for Health Sciences shall coordinate the West
Virginia University School of Medicine, the Marshall University School of Medicine and the West
Virginia School of Osteopathic Medicine and also shall provide assistance to the governing boards
on matters related to medical education and health sciences. The Vice Chancellor for Health Sciences
shall perform all duties assigned by the chancellor, the Commission and state law. In the case of a
vacancy in the office of Vice Chancellor of Health Sciences, the duties assigned to this Office by law
are the responsibility of the Chancellor or a designee.
(g) The Commission shall employ a Vice Chancellor for Administration pursuant to section
two, article four of this chapter.
(h) The Commission may employ a Vice Chancellor for State Colleges who serves at the will
and pleasure of the Commission. It is the duty and responsibility of the Vice Chancellor for State
Colleges to:
(1) Provide assistance to the Commission, the Chancellor and the state colleges on matters
related to or of interest and concern to these institutions;
(2) Advise, assist and consult regularly with the institutional presidents and institutional boards of governors of each state college;
(3) Serve as an advocate and spokesperson for the state colleges to represent them and to make
their interests, views and issues known to the Chancellor, the Commission and governmental
agencies;
(4) Perform all duties assigned by the Chancellor, the Commission and state law.
In addition, the Vice Chancellor for State Colleges has the responsibility and the duty to
provide staff assistance to the institutional presidents and governing boards to the extent practicable.
(i) On behalf of the Commission, the chancellor may enter into agreements with any state
agency or political subdivision of the state, any state higher education institution or any other person
or entity to enlist staff assistance to implement the powers and duties assigned by the Commission
or by state law.
(j) The Chancellor is responsible for the daily operations of the Commission and has the
following responsibilities relating to the Commission and the institutions under its jurisdiction:
(1) To carry out policy and program directives of the Commission;
(2) To develop and submit annual reports on the implementation plan to achieve the goals and
objectives set forth in section one-a, article one of this chapter and in the institutional compacts;
(3) To prepare and submit to the Commission for its approval the proposed budget of the
Commission including the offices of the Chancellor and the Vice Chancellors;
(4) To assist the governing boards in developing rules, subject to the provisions of section six,
article one of this chapter. Nothing in this chapter requires the rules of the governing boards to be
filed pursuant to the rule-making procedures provided in article three-a, chapter twenty-nine-a of this
code. The chancellor is Commission and the Council, either separately or jointly, as appropriate, are
responsible for ensuring that any policy which is required to be uniform across the institutions is
applied in a uniform manner;
(5) To perform all other duties and responsibilities assigned by the Commission or by state
law.
(k) The Chancellor shall be reimbursed for all actual and necessary expenses incurred in the
performance of all assigned duties and responsibilities.
(l) The Chancellor, with the Commission, advises the Legislature on matters of higher
education in West Virginia. The Chancellor shall work closely with the Legislative Oversight
Commission on Education Accountability and with the elected leadership of the state to ensure that
they are fully informed about higher education issues and that the Commission fully understands the
goals for higher education that the Legislature has established by law.
(m) The Chancellor may design and develop for consideration by the Commission new
statewide or regional initiatives in accordance with the goals set forth in section one-a, article one of
this chapter and the public policy agenda articulated by the Commission. In those instances where
the initiatives to be proposed have a direct and specific impact or connection to community and
technical college education as well as to baccalaureate and graduate education, the Chancellor for
Higher Education and the Chancellor for Community and Technical College Education shall design
and develop the initiatives jointly for consideration by the Commission and the Council.
(n) The Chancellor shall work closely with members of the State Board of Education and with
the State Superintendent of Schools to assure that the following goals are met:
(1) Development and implementation of a seamless kindergarten-through-college system of
education; and
(2) Appropriate coordination of missions and programs. To further the goals of cooperation
and coordination between the Commission and the State Board of Education, the Chancellor serves
as an ex officio, nonvoting member of the State Board of Education.
§18B-1B-6. Appointment of institutional presidents; evaluation.
(a) Appointment of institutional presidents. -- Appointment of presidents of the public state
institutions of higher education shall be made as follows:
(1) Subject to the approval of the Commission, the governing board of the institution appoints
a president for Bluefield State College, Concord college University, Fairmont State college University, Glenville State College, Marshall University, Shepherd college University, West Liberty
State College, West Virginia School of Osteopathic Medicine, West Virginia State college University
and West Virginia University.
(2) Subject to the approval of the Council and to the provisions of article three-c of this
chapter, the Governing Board of West Virginia University appoints the President of the regional
campus known as West Virginia University at Parkersburg. When selecting candidates for
consideration to fill the office of president, the Governing Board shall use the search and screening
process provided for in section one, article six of this chapter.
Subject to the approval of the Commission, the Governing Board of West Virginia University
appoints the President of the regional campus known as West Virginia University Institute of
Technology. The president of each regional campus serves at the will and pleasure of the appointing
governing board.
(3) Subject to the approval of the Council, the governing board of the community and
technical college appoints a president for Eastern West Virginia Community and Technical College,
Southern West Virginia Community and Technical College and West Virginia Northern Community
and Technical College.
(4) Subject to the approval of the Council, the governing board of the sponsoring institution
appoints a president for each administratively linked community and technical colleges college which
shares a physical campus location with the sponsoring institution, including Fairmont State
Community and Technical College, Marshall Community and Technical College, the Community and
Technical College at West Virginia University Institute of Technology and West Virginia State
Community and Technical College.
(5) Subject to the approval of the Council, the governing board of the community and
technical college appoints a president for each administratively linked community and technical
college which does not share a physical campus location with the sponsoring institution, including
New River Community and Technical College and the Community and Technical College of Shepherd.
Subject to the approval of the Council, the governing board of the sponsoring institution
appoints a president for each of these two community and technical colleges until the institution gains
independent accreditation.
(b) Other appointments. -- Effective the first day of July, two thousand five, The institutional
president shall appoint appoints a provost to be the administrative head of the Potomac campus of
West Virginia University.
(c) Evaluation of presidents. -- The appointing governing board shall conduct written
performance evaluations of each institution's president, including the presidents of administratively
linked community and technical colleges. Evaluations shall be done in every fourth year of
employment as president, recognizing unique characteristics of the institution and utilizing
institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate
governing board and persons knowledgeable in higher education matters who are not otherwise
employed by a governing board. A part of the evaluation shall be a determination of the success of
the institution in meeting the requirements of its institutional compact.
§18B-1B-13. Study of issues affecting employees in public higher education.
(a) In consultation with the Council, the governing boards, the State Advisory Council of
Faculty established pursuant to section two, article six of this chapter and the State Advisory Council
of Classified Employees established pursuant to section five, article six of this chapter, the
Commission shall conduct a study relating to issues affecting employees in public higher education.
For the purposes of this section only, the Governor shall appoint three employees from state
institutions of higher education to participate in the study and to represent the interests of employees,
including one from Marshall University, one from West Virginia University and one from any other
state institution of higher education.
(b) The study includes, but is not limited to, the following:
(1) Reviewing statutes, rules, guidelines, interpretations and other statements of policy;
(2) Surveying the capacity, professional training and practices of human resources staff by
institution, including the number of staff employed in each institutional human resources office, their
job titles and responsibilities;
(3) Evaluating the strengths and weaknesses of the statewide classification and compensation
system and examining alternatives;
(4) Reviewing job titles and responsibilities to determine if certain families of jobs should be
classified or nonclassified;
(5) Evaluating and recommending best practices and methods to establish salary rates for
faculty, classified employees, nonclassified employees and administrators, including:
(A) Developing measurable indicators of "merit" and "performance" if these terms are to be
used in a system for determining benefits;
(B) Developing reliable instruments of performance evaluation for all classes of employees;
and
(C) Exploring the feasibility of authorizing employee bonuses under a merit or
performance-based system;
(6) Determining the most effective and efficient method to train administrators who perform
employee evaluations and assuring that they use these instruments appropriately;
(7) Exploring justifications for maintaining or removing the internal preference for hiring,
promoting and transferring classified employees pursuant to article seven of this chapter;
(8) Developing recommendations for a fair and rational policy covering reductions in force;
(9) Identifying unnecessary state-level paperwork requirements related to personnel and
recommending methods to eliminate them while maintaining strict fiscal accountability;
(10) Evaluating the strengths and weaknesses of statewide tenure and promotion policies for
faculty and examining alternatives;
(11) Evaluating the feasibility of implementing differential salary rates based on cost of living
or other relevant factors;
(12) Determining whether employees whose salaries are derived from funds other than state
appropriations should be subject to the provisions of article seven of this chapter and how such
employees should be treated in any policy on reductions in force; and
(13) Determining the true costs or benefits as well as the advantages and disadvantages that
may accrue as a result of decisions to outsource certain institutional functions. In order to perform
a cost/benefit analysis, the Commission must first develop an accurate database of institutional
practices including the number of positions being outsourced or filled by temporary employees and
the true amount of cost savings, if any.
(c) The Commission shall report to the Legislative Oversight Commission on Education
Accountability by the first day of October, two thousand five, and every six months thereafter on the
progress of the study.
(d) The Commission shall complete its work and report its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate the
recommendations, to the Legislative Oversight Commission on Education Accountability by the first
day of December, two thousand eight.
(1) In making its recommendations, the Commission shall take into account the impact of
proposed changes on employees and the communities in which state institutions of higher education
are located; and
(2) The Commission shall include documentation to support any conclusion or
recommendation included as a part of their findings and shall attach estimates of cost or savings to
each recommendation, if that recommendation has a fiscal impact on any public agency or institution.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-3. Supervision of governing boards; promulgation of rules.
(a) For the transition year beginning on the first day of July, two thousand and ending on the
thirtieth day of June, two thousand one, the Interim Governing Board is subject to the supervision of
the secretary of education and the arts. Rules adopted by the governing board are subject to approval by the secretary of education and the arts.
(b) (a) Effective the first day of July, two thousand one, and thereafter, The governing boards
are subject to the supervision of the chancellor Commission or the Council, as appropriate, except for
the governing boards of Marshall University and West Virginia University as it relates to the state
institutions of higher education know as Marshall University and West Virginia University. The
Chancellor for Higher Education and the Chancellor for Community and Technical College
Education, under the supervision of their respective boards, is are responsible for the coordination of
policies and purposes of the governing boards and shall provide for and facilitate sufficient interaction
among the governing boards and between the governing boards and the State Board of Education to
meet the goals and objectives provided for in the compacts and in section one-a, article one of this
chapter.
(c) (b) The governing boards and the State Board of Education shall provide any and all
information requested by the chancellor Commission or the Council in a an appropriate format and
in a timely manner.
§18B-2A-4. Powers and duties of governing boards generally.
Each governing board separately has the following powers and duties:
(a) Determine, control, supervise and manage the financial, business and education policies
and affairs of the state institutions of higher education under its jurisdiction;
(b) Develop a master plan for the institutions under its jurisdiction, except the administratively
linked community and technical colleges which retain an institutional board of advisors shall develop
their master plans subject to the provisions of section one, article six of this chapter.
(1) The ultimate responsibility for developing and updating the master plans at the institutional
level resides with the board of governors, or board of advisors, as applicable. but The ultimate
responsibility for approving the final version of the institutional master plans, including periodic
updates, resides with the governing boards of Marshall University and West Virginia University for
the state institutions of higher education known as Marshall University and West Virginia University, respectively, and with the Commission or Council, as appropriate, for all other state institutions of
higher education.
(2) Each master plan shall include, but not be limited to, the following:
(1) (A) A detailed demonstration of how the master plan will be used to meet the goals and
objectives of the institutional compact;
(2) (B) A well-developed set of goals outlining missions, degree offerings, resource
requirements, physical plant needs, personnel needs, enrollment levels and other planning
determinates and projections necessary in such a plan to assure that the needs of the institution's area
of responsibility for a quality system of higher education are addressed;
(3) (C) Documentation of the involvement of the Commission or Council, as appropriate,
institutional constituency groups, clientele of the institution and the general public in the development
of all segments of the institutional master plan.
(3) The plan shall be established for periods of not less than three nor more than six years and
shall be revised periodically as necessary, including the addition or deletion of degree programs as,
in the discretion of the appropriate governing board, may be necessary;
(c) Prescribe for the institutions under its jurisdiction, in accordance with its master plan and
the compact for each institution, specific functions and responsibilities to meet the higher education
needs of its area of responsibility and to avoid unnecessary duplication;
(d) Direct the preparation of a budget request for the institutions under its jurisdiction, such
request to relate directly to missions, goals and projections as found in the institutional master plans
and the institutional compacts;
(e) Consider, revise and submit to the Commission or Council, as appropriate, a budget
request on behalf of the institutions under its jurisdiction;
(f) Review, at least every five years, all academic programs offered at the institutions under
its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in
relation to its institutional master plan, the institutional compact and the education and workforce needs of its responsibility district. As a part of the review, each governing board shall require the
institutions under its jurisdiction to conduct periodic studies of its graduates and their employers to
determine placement patterns and the effectiveness of the education experience. Where appropriate,
these studies should coincide with the studies required of many academic disciplines by their
accrediting bodies;
(g) The governing boards shall ensure that the sequence and availability of academic programs
and courses offered by the institutions under their jurisdiction is such that students have the maximum
opportunity to complete programs in the time frame normally associated with program completion.
Each governing board is responsible to see that the needs of nontraditional college-age students are
appropriately addressed and, to the extent it is possible for the individual governing board to control,
to assure core course work completed at institutions under its jurisdiction is transferable to any other
state institution of higher education for credit with the grade earned;
(h) Subject to the provisions of article one-b of this chapter, the appropriate governing board
has the exclusive authority to approve the teacher education programs offered in the institution under
its control. In order to permit graduates of teacher education programs to receive a degree from a
nationally accredited program and in order to prevent expensive duplication of program accreditation,
the Commission may select and utilize one nationally recognized teacher education program
accreditation standard as the appropriate standard for program evaluation;
(i) Utilize faculty, students and classified employees in institutional-level planning and
decisionmaking when those groups are affected;
(j) Subject to the provisions of federal law and pursuant to the provisions of article nine of this
chapter and to rules adopted by the Commission and the Council, administer a system for the
management of personnel matters, including, but not limited to, personnel classification,
compensation and discipline for employees at the institutions under their jurisdiction;
(k) Administer a system for hearing employee grievances and appeals. Notwithstanding any
other provision of this code to the contrary, the procedure established in article six-a, chapter twenty-nine of this code is the exclusive mechanism for hearing prospective employee grievances and
appeals. In construing the application of said article to grievances of higher education employees, the
following apply:
(1) "Chief administrator" means the president of a state institution of higher education as to
those employees employed by the institution and the appropriate chancellor as to those employees
employed by the Commission or Council;
(2) The State Division of Personnel may not be a party to nor have any authority regarding a
grievance initiated by a higher education employee; and
(3) The provisions of this section supersede and replace the grievance procedure set out in
article twenty-nine, chapter eighteen of this code for any grievance initiated by a higher education
employee after the first day of July, two thousand one;
(l) Solicit and utilize or expend voluntary support, including financial contributions and
support services, for the institutions under its jurisdiction;
(m) Appoint a president for the institutions under its jurisdiction subject to the provisions of
section six, article one-b of this chapter;
(n) Conduct written performance evaluations of the president pursuant to section six, article
one-b of this chapter;
(o) Employ all faculty and staff at the institution under its jurisdiction. Such employees
operate under the supervision of the president, but are employees of the governing board;
(p) Submit to the Commission or Council, as appropriate, no later than the first day of
November of each year an annual report of the performance of the institution under its jurisdiction
during the previous fiscal year as compared to stated goals in its master plan and institutional
compact;
(q) Enter into contracts or consortium agreements with the public schools, private schools or
private industry to provide technical, vocational, college preparatory, remedial and customized
training courses at locations either on campuses of the public institution of higher education or at off-campus locations in the institution's responsibility district. To accomplish this goal, the boards
are permitted to share resources among the various groups in the community;
(r) Provide and transfer funding and property to certain corporations pursuant to section ten,
article twelve of this chapter;
(s) Delegate, with prescribed standards and limitations, the part of its power and control over
the business affairs of the institution to the president in any case where it considers the delegation
necessary and prudent in order to enable the institution to function in a proper and expeditious manner
and to meet the requirements of its institutional compact. If a governing board elects to delegate any
of its power and control under the provisions of this subsection, it shall enter such delegation in the
minutes of the meeting when the decision was made and shall notify the appropriate chancellor
Commission or Council, as appropriate. Any such delegation of power and control may be rescinded
by the appropriate governing board, or the chancellor the Commission or Council, as appropriate, at
any time, in whole or in part, except that the Commission may not revoke delegations of authority
made by the governing boards of Marshall University or West Virginia University as they relate to
the state institutions of higher education known as Marshall University and West Virginia University;
(t) Unless changed by the Commission or the Council, as appropriate, the governing boards
shall continue to abide by existing rules setting forth standards for acceptance of advanced placement
credit for their respective institutions. Individual departments at institutions of higher education may,
upon approval of the institutional faculty senate, require higher scores on the advanced placement test
than scores designated by the appropriate governing board when the credit is to be used toward
meeting a requirement of the core curriculum for a major in that department;
(u) Each governing board, or its designee, shall consult, cooperate and work with the State
Treasurer and the State Auditor to update as necessary and maintain an efficient and cost-effective
system for the financial management and expenditure of special revenue and appropriated state funds
at the institutions under its jurisdiction that ensures that properly submitted requests for payment be
paid on or before due date but, in any event, within fifteen days of receipt in the State Auditor's office;
(v) The governing boards in consultation with the appropriate chancellor and the Secretary
of the Department of Administration shall develop, update as necessary and maintain a plan to
administer a consistent method of conducting personnel transactions, including, but not limited to,
hiring, dismissal, promotions and transfers at the institutions under their jurisdiction. Each such
personnel transaction shall be accompanied by the appropriate standardized system or forms which
will be submitted to the respective governing board and the Department of Finance and
Administration;
(w) Transfer of funds. --
(1) Notwithstanding any other provision of this code to the contrary, the governing boards may
transfer funds from any account specifically appropriated for their use to any corresponding line item
in a general revenue account at any agency or institution under their jurisdiction as long as such
transferred funds are used for the purposes appropriated.
(2) The governing boards may transfer funds from appropriated special revenue accounts for
capital improvements under their jurisdiction to special revenue accounts at agencies or institutions
under their jurisdiction as long as such transferred funds are used for the purposes appropriated.
(x) Notwithstanding any other provision of this code to the contrary, the governing boards may
acquire legal services as are considered necessary, including representation of the governing boards,
their institutions, employees and officers before any court or administrative body. The counsel may
be employed either on a salaried basis or on a reasonable fee basis. In addition, the governing boards
may, but are not required to, call upon the Attorney General for legal assistance and representation
as provided by law; and
(y) Each governing board which has under its jurisdiction an administratively linked
community and technical college or a regional campus offering community and technical college
education programs shall create within the administrative structure of its governing board a
subcommittee for community and technical college education. The subcommittee shall have at least
four members, one of whom is the chairperson of the board of advisors of the community and technical college or, in the case of the Governing Board of West Virginia university, both the member
representing the community and technical college and the member representing the regional campus;
and
(z) A governing board may contract and pay for disability insurance for a class or classes of
employees at a state institution of higher education under its jurisdiction.
§18B-2A-7. Additional powers and duties of governing boards.
When the institutional operating budgets of all state institutions of higher education have
achieved a level of funding comparable, but not less than eighty percent, with their respective peers,
as established pursuant to section three, article one-a of this chapter, but not sooner than the first day
of July, two thousand ten, all state institutions of higher education are granted the powers and
authorities previously granted to the state institutions of higher education known as Marshall
University and West Virginia University pursuant to:
(1) Section four-a, article six, chapter five of this code;
(2) Section twelve-b, article one, chapter twelve of this code;
(3) Sections five, six, seven and eight, article three, chapter twelve of this code;
(4) Sections three and six, article one of this chapter;
(5) Section two article one-a of this chapter;
(6) Section four, article one-b of this chapter;
(7) Sections three and four, article two-a of this chapter;
(8) Sections two and three, article three of this chapter;
(9) Sections five, five-a, six and seven, article four of this chapter;
(10) Sections three, four, seven and nine, article five of this chapter; and
(11) Sections one and six-a, article ten of this chapter.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL
COLLEGE EDUCATION.
§18B-2B-9. Permits required for correspondence, business, occupational and trade schools; surety bonds and fees; issuance, renewal and revocation of permit;
reports; rules; penalty and enforcement.
(a) The following words when used in this section have the meaning hereinafter ascribed to
them unless the context clearly indicates a different meaning:
(1) "Proprietary schools that award specialized associate degrees" means institutions of higher
education; and
(2) "Specialized associate degrees" means degrees awarded by such institutions pursuant to
a program of not fewer than two academic years.
(b) Nothing in this section qualifies proprietary schools for additional state moneys not
otherwise qualified under other provisions of this code.
(c) It is unlawful for any person representing a correspondence, business, occupational or trade
school inside or outside this state, as these are defined by the Council by rule promulgated in
accordance with article three-a, chapter twenty-nine-a of this code, to solicit, sell or offer to sell
courses of instruction to any resident of this state for consideration or remuneration unless the school
first applies for a permit, or obtains a permit, from the Council in the manner and on the terms herein
prescribed, except this section does not apply to private organizations which offer only tax return
preparation courses. The rule previously promulgated by the State College System Board of Directors
and transferred to the Council by section six, article two-b, chapter eighteen-b of this code remains
in effect until rescinded or amended by the Council.
(1) All private training or educational institutions, schools or academies or other organizations
shall apply for a permit from the Council on forms provided by the Council.
(2) Each initial application shall be accompanied by a nonrefundable fee of two thousand
dollars. The Council also may assess an additional fee based on any additional expense required to
evaluate the application.
(3) The Council shall make a determination on the initial permit application within ninety days
after receipt of the application and fee.
(4) An applicant for an initial permit shall show proof at the time of filing an application that
adequate facilities are available and ready for occupancy and that all instructional equipment, books
and supplies and personnel are in place and ready for operation. A representative of the Council shall
make an on-site visit to the facilities of all new applicants to confirm their readiness for operation
prior to issuance of the initial permit if the facilities are located in West Virginia.
(5) A school is considered to be established under the provisions of this article on the date it
first begins to operate lawfully. An established school is not required to reapply for a permit as a
result of changes in governance; administration; ownership; or form of operation.
(6) After the first permit year, an annual fee of five hundred dollars is imposed on each school
for each campus it operates in this state.
(d)Each application shall be accompanied by a surety bond in the penal sum of thirty-five
thousand dollars for any school which has its physical facilities located in this state and which has
operated in this state for at least ten years:
(1) If the school has changed ownership within the last ten years by transfer of ownership
control to a person who is a spouse, parent, sibling, child or grandchild of the previous owner, the
surety bond shall continue in the penal sum of thirty-five thousand dollars.
(2) Any school which has operated in West Virginia for fewer than ten years, excluding those
schools which have changed ownership within the last ten years as provided in subdivision (1) of this
section, and any school located in another state which applies for a permit hereunder, shall provide
a surety bond of fifty thousand dollars.
(3) Any school may be required to increase its bond to one hundred fifty thousand dollars if
either of the following conditions apply:
(A) The school's accreditation is terminated for cause; or
(B) The school's institutional eligibility under the Higher Education Act of 1965, as amended,
has been terminated for cause. Expiration, nonrenewal or voluntary relinquishment of accreditation
or institutional eligibility under the Higher Education Act, or failure to meet the requirements of one or more programs under the Act, are not considered to be a termination for cause.
(4) Any school may be required to increase its bond to an amount not to exceed four hundred
thousand dollars if, in accordance with the standards of the American Institute of Certified Public
Accountants, the school's audited financial statements are qualified because the school's continued
financial viability as an ongoing concern is in doubt and the Council determines an increased bond
is reasonably necessary to protect the financial obligations legally due the students then enrolled at
the institution.
(A) A school may be required to maintain the increased bonding requirements described above
until all students attending classes at the date of termination either graduate or withdraw.
(B) The bond may be continuous and shall be conditioned to provide indemnification to any
student suffering loss as a result of any fraud or misrepresentation used in procuring the student's
enrollment, failure of the school to meet contractual obligations, or failure of the school to meet the
requirements of this section.
(C) The bond shall be given by the school itself as a blanket bond covering all of its
representatives.
(D) The surety on a bond may cancel the same upon giving thirty days' notice in writing to the
principal on the bond and to the state Council and thereafter shall be relieved of liability for any
breach of condition occurring after the effective date of the cancellation.
(e) A permit shall be valid for one year corresponding to the effective date of the bond and
may be renewed upon application, accompanied by the required fee and the surety bond as herein
required. All fees collected for the issuance or renewal of a permit shall be deposited in the State
Treasury to the credit of the Council.
(f) The Council may refuse a permit to any school if the Council finds that the school engages
in practices which are inconsistent with this section or with rules issued pursuant thereto.
(g) permit issued hereunder may be suspended or revoked by the Council for fraud or
misrepresentation in soliciting or enrolling students, for failure of the school to fulfill its contract with one or more students who are residents of West Virginia or for violation of or failure to comply with
any provision of this section or with any regulation of the Council pertinent thereto.
(1) Before taking any action to suspend or revoke a school's permit, the Council shall give the
school fifteen days' notice and convene a hearing, if a hearing is requested by the school.
(2) Prior to the Council taking any adverse action, including refusal, suspension or revocation
of a permit, the Council shall give the school reasonable opportunity to take corrective measures.
(3) Any refusal, suspension or revocation of a permit, or any other adverse action against a
school, shall comply with all constitutional provisions, including due process, relating to the
protection of property rights.
(h) All correspondence, business, occupational or trade schools which have been issued
a permit shall make annual reports to the Council on forms furnished by the Council and shall provide
such appropriate information as the Council reasonably may require. All correspondence, business,
occupational or trade schools which have been issued a permit shall furnish to the Council a list of
its official representatives. Each school shall be issued a certificate of identification by the Council
for each of its official representatives.
(i) The issuance of a permit pursuant to this section does not constitute approval or
accreditation of any course or school. No school, nor any representative of a school, may make any
representation stating, asserting or implying that a permit issued pursuant to this section constitutes
approval or accreditation by the State of West Virginia, Council or any other department or agency
of the state.
(j) The Council is hereby authorized to adopt rules and conduct on-site reviews to evaluate
academic standards maintained by schools for the awarding of certificates, diplomas, associate
degrees and specialized associate degrees.
(1) These standards may include curriculum, personnel, facilities, materials and equipment.
(2) For accredited correspondence, business, occupational and trade schools under permit on
the first day of July, one thousand nine hundred seventy-nine, which have their physical facilities located in this state and which are accredited by the appropriate nationally recognized accrediting
agency or association approved by the United States Department of Education, the accrediting
agency's standards, procedures and criteria are accepted as meeting applicable laws, standards and
rules of the Council.
(3) Institutions which are institutionally accredited by accrediting agencies recognized by the
United States Department of Education to establish academic standards for post-secondary education
may offer post-secondary educational programs leading to certificates, diplomas and associate
degrees and may award certificates, diplomas and associate degrees to graduates who successfully
complete required programs in accordance with the academic standards required by such accrediting
agency.
(4) If a review undertaken by the Council indicates there may be deficiencies in the academic
standards the institution maintains in its educational programs and if such deficiencies are of such a
material nature that they jeopardize continued accreditation, the Council shall notify the institution.
If the Council and the institution are unable to agree on the deficiencies or the steps necessary to
correct the deficiencies, the Council shall consult with the institution's accrediting agency regarding
an academically appropriate resolution which may include a joint on-site review by the Council and
the accrediting agency.
(5) The Council also may review the academic standards of unaccredited institutions and may
require such institutions to maintain recognized academic standards that are reasonably appropriate
to the nature of the institution and the training offered.
(k) The Council may authorize an investigation of written student complaints alleging a
violation of this section, Council rules or accreditation standards and may take appropriate action
based on the findings of such an investigation.
(l) All evaluations or investigations of correspondence, business, occupational and trade
schools and actions resulting from such evaluations or investigations shall be made in accordance
with rules promulgated by the Council pursuant to article three-a, chapter twenty-nine-a of this code.
(m) In regard to private, proprietary educational institutions operating under this section of
the code, accredited by a national or regional accrediting agency or association recognized by the
United States Department of Education and which provide training at a campus located in this state:
(1) Any rule or standard which is authorized by this or any section of the code or other law
and which is now in effect or promulgated hereafter by the Council (or other agency with jurisdiction)
shall be clearly, specifically and expressly authorized by narrowly construed enabling law and shall
be unenforceable and without legal effect unless authorized by an Act of the Legislature under the
provisions of article three-a, chapter twenty-nine-a of this code.
(2) Notwithstanding any other provision of this section or other law to the contrary, the
institution's accrediting agency standards, procedures and criteria shall be accepted as the standards
and rules of the Council (or other agency with jurisdiction) and as meeting other law or legal
requirements relating to the operation of proprietary institutions which such Council or other agency
has the legal authority to enforce under any section of the code or other law. Nothing in this section
denies students the use of remedies that would otherwise be available under state or federal consumer
laws or federal law relating to federal college financial assistance programs.
(3) Accredited institutions operating hereunder are hereby recognized as postsecondary.
Academic progress is measured and reported in credit hours and all reports/documents are filed on
a credit-hour basis unless the institution notifies the Council that it utilizes clock hours as its unit of
measurement.
(n) A representative of any school who solicits, sells or offers to sell courses of instruction to
any resident of this state for consideration or remuneration unless the school first applies for a permit,
or obtains a permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more
than two hundred dollars per day per violation, or imprisoned in jail not more than sixty days, or both
fined and imprisoned. No correspondence, business, occupational or trade school shall maintain an
action in any court of this state to recover for services rendered pursuant to a contract solicited by the
school if the school did not hold a valid permit at the time the contract was signed by any of the parties thereto. The Attorney General or any county prosecuting attorney, at the request of the
Council or upon his or her own motion, may bring any appropriate action or proceeding in any court
of competent jurisdiction for the enforcement of the provisions of this section relating to permits,
bonds and sureties.
(o) In regard to institutions operating under this section, all substantive standards and
procedural requirements established by the Council (or the West Virginia state program review entity
or other agency with jurisdiction over institutions operating hereunder) shall meet all substantive and
procedural standards of due process relating to the protection of an individual citizen's property rights
as provided under the United States Constitution and shall follow the substantive standards and
procedural requirements established by or under authority of this section.
ARTICLE 3. ADDITIONAL POWERS AND DUTIES OF RESEARCH,
DOCTORAL-GRANTING PUBLIC UNIVERSITIES.
§18B-3-1. Legislative findings, purpose; intent; definition.
(a) The Legislature finds that an effective and efficient system of doctoral-level education is
vital to providing for the economic well-being of the citizens of West Virginia and for accomplishing
established state goals and objectives. As the only research and doctoral-granting public universities
in the state, Marshall University and West Virginia University are major assets to the citizens of West
Virginia and must be an integral part of any plan to strengthen and expand the economy.
(b) The Legislature further finds that these two institutions must compete in both a national
and global environment that is rapidly changing, while they continue to provide high quality
education that is both affordable and accessible and remain accountable to the people of West
Virginia for the most efficient and effective use of scarce resources.
(c) The Legislature further finds that Marshall University and West Virginia University, under
the direction of their respective governing boards, have sufficient staff and internal expertise to
manage operational governance of their institutions in an efficient and accountable manner and can
best fulfill their public missions when their governing boards are given flexibility and autonomy sufficient to meet state goals established in this article and in section one-a, article one of this chapter.
(d) Therefore, the purposes of this article include, but are not limited to, the following:
(1) Enhancing the competitive position of Marshall University and West Virginia University
in the current environment for research and development;
(2) Providing the governing boards of these institutions with operational flexibility and
autonomy, including tools to promote economic development in West Virginia;
(3) Encouraging the development of research expertise in areas directly beneficial to the state;
and
(4) Focusing the attention and resources of the governing boards on state goals and priorities
to enhance the competitive position of the state and the economic, social and cultural well-being of
its citizens.
(e) The following terms wherever used or referred to in this chapter have the following
meaning, unless a different meaning plainly appears from the context:
(1) "State institution of higher education known as Marshall University" means the
doctoral-granting research institution and does not include Marshall Community and Technical
College; and
(2) "State institution of higher education known as West Virginia University" means the
doctoral-granting research institution and does not include any of the following:
(A) The regional campus known as West Virginia University Institute of Technology;
(B) The administratively linked institution known as the Community and Technical College
at West Virginia University Institute of Technology; and
(C) The regional campus known as West Virginia University at Parkersburg.
(f) The governing boards of Marshall University and West Virginia University each have the
power and the obligation to perform functions, tasks and duties as prescribed by law and to exercise
their authority and carry out their responsibilities in a manner that is consistent with and not in
conflict with the powers and duties assigned by law to the West Virginia Council for Community and Technical College Education and the Higher Education Policy Commission.
(g) While the governing boards of Marshall University and West Virginia University,
respectively, may choose to delegate powers and duties to the presidents of the state institutions of
higher education known as Marshall University and West Virginia University pursuant to subsection
(s), section four, article two-a of this chapter, ultimately it is they who are accountable to the
Legislature, the Governor and the citizens of West Virginia for meeting the established state goals
set forth in this article and section one-a, article one of this chapter. Therefore, it is the intent of the
Legislature that grants of operational flexibility and autonomy be made directly to the governing
boards and are not grants of operational flexibility and autonomy to the presidents of these
institutions.
§18B-3-2. Computer and computer equipment donation program.
Notwithstanding any other provision of this code to the contrary, the governing boards are
authorized to create a program to donate surplus computers and computer-related equipment to
education facilities, nonprofit organizations, juvenile detention centers, municipal and county public
safety offices and other public, charitable or educational enterprises or organizations in this state.
(a) Only equipment which otherwise would be transferred to the Surplus Property Unit of the
Purchasing Division may be donated;
(b) The governing boards shall keep records and accounts that clearly identify the equipment
donated, the age of the equipment, the reasons for declaring it obsolete and the name of the education
facility, nonprofit organization, juvenile detention center, municipal or county public safety office or
other public, charitable or educational enterprise or organization to which the equipment was donated;
(c) Each governing board shall promulgate a rule in accordance with the provisions of section
six, article one of this chapter to implement the donation program. The rules shall specify the
procedures to be used for record keeping and shall provide for fair and impartial selection of
equipment recipients.
§18B-3-3. Relationship of governing boards to the Commission and the Council.
(a) Relationship between the Commission and the governing boards:
(1) The Commission functions as a state-level coordinating board exercising its powers and
duties in relation to the governing boards of Marshall University and West Virginia University only
as specifically prescribed by law;
(2) The primary responsibility of the Commission is to work collaboratively with the
governing boards to research, develop and propose policy that will achieve the established goals and
objectives set forth in this chapter and chapter eighteen-c of this code; and
(3) The Commission has specific responsibility for, including, but not limited to, the
following:
(A) Advocating for public higher education at the state level; and
(B) Collecting and analyzing data, researching, developing recommendations, and advising
the Legislature and the Governor on broad policy initiatives, use of incentive funding, national and
regional trends in higher education and issues of resource allocation involving multiple governing
boards.
(b) Relationship between the Council and the governing boards:
(1) The Council maintains all powers and duties assigned to it by law or policy relating to the
administratively linked institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and Technical College at West Virginia
University Institute of Technology and the regional campus known as West Virginia University at
Parkersburg;
(2) In addition to recognizing the authority assigned by law to the Council, it is the
responsibility of the governing boards of Marshall University and West Virginia University to
exercise their authority and carry out their responsibilities in a manner that is consistent with and
complementary to the powers and duties assigned by law or policy to the community and technical
colleges or to the Council;
(3) It is further the responsibility of the governing boards to abide by the rules duly promulgated by the Council relating to the community and technical colleges, to strengthen the
community and technical college mission of these institutions, to aid them in meeting the essential
conditions set forth in section three, article three-c of this chapter and to promote them to students,
parents and the community as independently accredited institutions in their own right.
(c) The governing boards shall work collaboratively with the Commission, the Council and
their staff to provide any and all information requested by the Commission or the Council in an
appropriate format and in a timely manner.
§18B-3-4. Duty of governing boards to address state priorities.
(a) The expertise of faculty and graduate students at the state institutions of higher education
known as Marshall University and West Virginia University is important to every citizen of this state.
It is the responsibility of the governing boards to channel this expertise into research and analysis that
will yield measurable benefits to the citizens of West Virginia. Therefore, in addition to the goals for
post-secondary education established in section one-a, article one of this chapter, and goals
established elsewhere in this code, it is the responsibility of the governing boards in collaboration to
concentrate attention and resources on certain specific state priorities that have a direct, positive
impact on the economic, social, and cultural well-being of the people of West Virginia. These
priorities include, but are not limited to, the following:
(1) Developing Regional Brownfield Assistance Centers pursuant to section seven, article
eleven of this chapter;
(2) Performing professional development-related research and coordinating the delivery of
professional development to educators in the public schools of the state pursuant to the provisions
of article two, chapter eighteen of this code; and
(3) Building subject matter expertise in public school finance, including mastery of the
theories and concepts used in developing formulas to provide state-level financial support to public
education.
(4) Researching and proposing cost-efficient methods to the Legislature for governing boards other than Marshall University and West Virginia University to dispose of obsolete computers and
computer-related equipment.
(b) The Legislature may, but is not required to, make additional appropriations for the benefit
of the state institutions of higher education known as Marshall University and West Virginia
University to assist them in fulfilling the purposes set forth in subsection (a) of this section.
(c) In addition to the priorities established in subsection (a) of this section, each governing
board separately shall focus resources and attention on improving their graduation rates for full-time
undergraduate students as a specific institutional priority. The graduation rate is measured as a
percentage of the undergraduate students who obtain a degree within six years of the date of
enrollment as full-time freshmen. The governing boards shall develop and implement plans to reach
the following goals:
(1) Marshall University shall attain a graduation rate for full-time undergraduate students of
forty percent by the first day of July, two thousand eight, and shall attain a graduation rate for
full-time undergraduate students of forty-five percent by the first day of July, two thousand ten.
(2) West Virginia University shall attain a graduation rate for full-time undergraduate students
of sixty percent by the first day of July, two thousand eight, and shall attain a graduation rate for
full-time undergraduate students of sixty-three percent by the first day of July, two thousand ten.
(3) The Commission shall monitor and report by the first day of December, two thousand five
and annually thereafter to the Legislative Oversight Commission on Education Accountability on the
progress of the governing boards toward meeting the goals set forth in subdivisions (1) and (2) of this
subsection.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-5. Campus police officers; appointment; qualifications; authority; compensation and
removal.
(a) The governing boards are hereby authorized to may appoint bona fide residents of this state
to act serve as campus police officers upon any premises owned or leased by the State of West Virginia and under the jurisdiction of the governing boards, subject to the conditions and restrictions
hereinafter imposed established in this section.
(1) A person who previously was qualified for employment as a law-enforcement officer for
a state agency or political subdivision of the state is considered certified for appointment as a campus
police officer at the state institutions of higher education under the jurisdiction of the governing
boards of Marshall University and West Virginia University.
(2) Before performing duties as a campus police officer in any county, each person so
appointed shall first qualify therefor in the same manner as is a person shall qualify as is required of
county police officers by: the
(A) Taking and filing of an oath of office as required by article one, chapter six of this code;
and by
(B) Posting an official bond as required by article two, chapter six of this code.
(b) A campus police officer shall have authority to carry a gun and may carry a gun and any
other dangerous weapon while on duty if the campus police officer fulfills the certification
requirement for law-enforcement officers under section five, article twenty-nine, chapter thirty of this
code or meets the requirements of subsection (a) of this section.
(c) It is the duty of any person so appointed and qualified as a campus police officer to
preserve law and order: only upon those
(1) On the premises under the jurisdiction of the governing boards and board; and
(2) On any other street, road or thoroughfare, except controlled access and open country
highways, immediately adjacent to or passing through such premises, to which the person may be
officer is assigned by the president or other administrative head of the state institution of higher
education.
(A) For this purpose the purpose of this subdivision, the campus police officer is a
law-enforcement officer pursuant to the provisions of section one, article twenty-nine, chapter thirty
of this code. and as to offenses committed within any area so assigned
(B) The officer has and may exercise all the powers and authority and of a law-enforcement
officer as to offenses committed within the area assigned;
(C) The officer is subject to all the requirements and responsibilities of a law-enforcement
officer; Provided, That the assignment of campus police officers to the duties authorized by this
section may not be deemed to
(D) Authority assigned pursuant to this subdivision does not supersede in any way the
authority or duty of other peace law-enforcement officers to preserve law and order on such premises.
In addition, the
(E) Campus police officers appointed under provisions of this section have authority to assist
local peace officers may assist a local law-enforcement agency on public highways. in the control
of The assistance may be provided to control traffic in and around premises owned by the state when:
of West Virginia whenever such
(i) Traffic is generated as a result of athletic or other activities conducted or sponsored by a
state institution of higher education; and when such
(ii) The assistance has been requested by the local peace officers local law-enforcement
agency.
(F) Campus police officers may assist a local law-enforcement agency in any location under
the agency's jurisdiction at the request of the agency.
(d) The salary of all such campus police officers shall be a campus police officer is paid by
the appropriate governing board. Each state institution may furnish each campus police officer with
a firearm and an official uniform to be worn while on duty. and The institution shall furnish and
require each officer while on duty to wear a shield with an appropriate inscription and to carry
credentials certifying to the person's identity and authority as a campus police officer. The
(e) A governing boards board may at their its pleasure revoke the authority of any campus
police officer and such officers serve at the will and pleasure of the governing board. The president
or other administrative head of the state institution of higher education shall report the termination of employment of a campus police officer by filing a notice to that effect in the office of the clerk of
each county in which the campus police officer's oath of office was filed.
§18B-4-5a. Crimes committed on campus of institutions of higher education.
(a) The president or a designee of each state institution of higher education in this state shall
on a regular and timely basis provide information to the public concerning alleged crimes occurring
on the institution's property which have been reported to a campus police officer or any other officer
of the institution.
(1) A crime shall be deemed reported whenever is considered reported when:
(A) A campus police officer or other officer of the institution determines that the report is
credible; when
(B) The report is submitted in writing and attested to by the victim on such forms as shall be
made available by forms at the institution for such purpose; or when
(C) The institution is notified by a law-enforcement agency of the reporting of a crime alleged
to have occurred on the institution's property.
(2) Such reports shall be are referred within twenty-four hours to the appropriate
law-enforcement agencies, as defined in section one, article twenty-nine, chapter thirty of this code,
for further investigation.
(b) For the state institutions of higher education under the jurisdiction of the Governing Board
of Marshall University and for the state institution of higher education known as West Virginia
University only, the campus police shall investigate a crime within their respective jurisdictions for
up to thirty days if the county prosecuting attorney does not reassign the case to another agency
sooner.
(c) The information required to be made available to the public regarding the crime report
shall be so available within ten days of the report. and The information shall include the nature of the
criminal offense, the date of the offense, the general location of the offense (such as a designation of
a specific building or area of the campus) and the time of day when the offense occurred. Provided, That this requirement shall not be construed to
(1) This subsection does not require the release of any information which may disclose the
identity of the victim. Provided, however, That
(2) The institution shall withhold the information required to be made available to the public
for a longer period upon certification of investigative need that the information be withheld from the
public. such certification to
(A) The certification shall be filed by an officer of one of the investigating law-enforcement
agencies with the president of the institution or the designee to whom the duties required by this
section have been delegated. Provided further, That
(B) The required information may in no event not be withheld after an arrest has been made
in connection with the crime report.
(d) For purposes of this section, "crime" is defined as those offenses required to be reported
under the federal Crime Awareness and Campus Security Act of 1990, as amended. and under section
eight-a, article one of this chapter. and "Crime" includes murder, rape, robbery, aggravated assault,
burglary, motor vehicle theft and arrests for liquor, drug or weapons laws violations.
(e) The governing boards Council and Commission shall provide crime reporting forms to
institutions under their respective jurisdictions and promulgate such a legislative rule pursuant to the
provisions of article three-a, chapter twenty-nine-a of this code as are necessary for the
implementation of to implement this section. Such forms and rules shall be provided by the central
office to other institutions of higher education in this state to assist them with the implementation of
this section.
§18B-4-7. Accreditation of institutions of higher education; standards for degrees.
The Council shall make rules for the accreditation of community and technical colleges in this
state and shall determine the minimum standards for conferring degrees. The Commission shall make
rules for the accreditation of colleges and universities in this state, except the Governing Boards of
Marshall University and West Virginia University shall make rules for the state institutions of higher education known as Marshall University and West Virginia University, and shall determine the
minimum standards for conferring degrees. The Governing Boards of Marshall University and West
Virginia University shall promulgate rules pursuant to the provisions of section six, article one of this
chapter for the accreditation of the state institutions of higher education known as Marshall University
and West Virginia University. An institution of higher education may not confer any degree on any
basis of work or merit below the minimum standards prescribed by the Council, or Commission or
the governing boards. Nothing in this section infringes upon the rights, including rights to award
degrees, granted to any institution by charter given according to law, or by actions of the Council or
Commission or their predecessors, prior to the effective date of this section. With the approval of the
Commission, governing boards of institutions which currently offer substantial undergraduate course
offerings and a master's degree in a discipline are authorized to grant baccalaureate degrees in that
discipline.
Except as otherwise provided in this section, a charter or other instrument containing the right
to confer degrees of higher education status may not be granted by the State of West Virginia to any
institution, association or organization within the state, nor may any such degree be awarded, until
the condition of conferring the degree has first been approved in writing by the Council, or
Commission or appropriate governing board.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and facilities.
The governing boards, and the Commission and the Council are authorized and empowered
to enter into contracts and expend funds for programs, services and facilities provided by public and
private education institutions, associations, boards, agencies, consortia, corporations, partnerships,
individuals and local, state and federal governmental bodies within and outside of West Virginia in
order that maximum higher education opportunities of high quality may be provided to the citizens
of the state in the most economical manner. In no event may a contract for such services and facilities
be entered into unless the Commission, the Council or the governing boards have determined that such services and facilities are necessary and would be at a savings to the state.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
(a) The Council, Commission and each governing board, through the Vice Chancellor for
Administration, shall purchase or acquire all materials, supplies, equipment, services and printing
required for that governing board or the Council or Commission, as appropriate, and the state
institutions of higher education under their jurisdiction, except the Governing Boards of Marshall
University and West Virginia University, respectively, are subject to the provisions of subsection (d)
of this section.
(b) The Commission and Council jointly shall adopt rules governing and controlling
acquisitions and purchases in accordance with the provisions of this section. The rules shall assure
that the Council, Commission and governing boards:
(1) Do not preclude any person from participating and making sales thereof to the governing
board or to the Council or Commission except as otherwise provided in section five of this article.
Provision of consultant services such as strategic planning services will not preclude or inhibit the
governing boards, Council or Commission from considering any qualified bid or response for delivery
of a product or a commodity because of the rendering of those consultant services;
(2) Establish and prescribe specifications, in all proper cases, for materials, supplies,
equipment, services and printing to be purchased;
(3) Adopt and prescribe such purchase order, requisition or other forms as may be required;
(4) Negotiate for and make purchases and acquisitions in such quantities, at such times and
under contract, in the open market or through other accepted methods of governmental purchasing
as may be practicable in accordance with general law;
(5) Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase
by means of sealed bids and competitive bidding or to effect advantageous purchases through other
accepted governmental methods and practices;
(6) Post notices of all acquisitions and purchases for which competitive bids are being solicited in the purchasing office of the specified institution involved in the purchase, at least two
weeks prior to making such purchases and ensure that the notice is available to the public during
business hours;
(7) Provide for purchasing in the open market;
(8) Provide for vendor notification of bid solicitation and emergency purchasing;
(9) Provide that competitive bids are not required for purchases of twenty-five thousand
dollars or less; and
(10) Provide for not fewer than three bids where bidding is required. If fewer than three bids
are submitted, an award may be made from among those received.
(c) The governing boards of Marshall University or West Virginia University, may seek the
assistance of the Attorney General in drafting and reviewing contracts, orders, bonds or other such
documents.
(d) Pursuant to this subsection, the Governing Boards of Marshall University and West
Virginia University, respectively, may:
(1) Purchase or acquire all materials, supplies, equipment, services and printing required for
the governing board without approval from the Commission or the Vice Chancellor for
Administration and may issue checks in advance to cover postage as provided in subsection (f) of this
section;
(2) Make purchases from cooperative buying groups, consortia, the federal government or
from federal government contracts if the materials, supplies, services, equipment or printing to be
purchased is available from these groups and if this would be the most financially advantageous
manner of making the purchase;
(3) Select and acquire by contract or lease all grounds, buildings, office space or other space,
the rental of which is necessarily required by the governing board;
(4) Use purchase cards under terms approved for the Commission, the Council and governing
boards of state institutions of higher education and participate in any expanded program of use as provided in subsection (w) of this section; and
(e) The governing boards shall adopt sufficient accounting and auditing procedures and
promulgate and adopt appropriate rules subject to the provisions of section six, article one of this
chapter to govern and control acquisitions, purchases, leases and other instruments for grounds,
buildings, office or other space or lease-purchase agreements.
(b) (f) The Council, Commission or each governing board, through the Vice Chancellor for
Administration, may issue a check in advance to a company supplying postage meters for postage
used by that board, the Council or Commission and by the state institutions of higher education under
their jurisdiction.
(c) (g) When a purchase is to be made by bid, any or all bids may be rejected. However, all
purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking
into consideration the qualities of the articles to be supplied, their conformity with specifications,
their suitability to the requirements of the governing boards, Council or Commission and delivery
terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter
five-a of this code apply to the competitive bids made pursuant to this section.
(d) (h) The governing boards, Council and Commission shall maintain a purchase file, which
shall be a public record and open for public inspection. After the award of the order or contract, the
governing boards, Council and Commission shall indicate upon the successful bid that it was the
successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor
is not awarded the order or contract, the reason therefor. A record in the purchase file may not be
destroyed without the written consent of the Legislative Auditor. Those files in which the original
documentation has been held for at least one year and in which the original documents have been
reproduced and archived on microfilm or other equivalent method of duplication may be destroyed
without the written consent of the Legislative Auditor. All files, no matter the storage method, shall
be open for inspection by the Legislative Auditor upon request.
(e) (i) The Commission and Council also jointly shall adopt rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall
require that a person may not be employed as a buyer unless that person, at the time of employment,
either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any unit of government or for any
business, commercial or industrial enterprise.
(f) (j) Any person making purchases and acquisitions pursuant to this section shall execute a
bond in the penalty of fifty thousand dollars, payable to the State of West Virginia, with a corporate
bonding or surety company authorized to do business in this state as surety thereon, in form
prescribed by the Attorney General and conditioned upon the faithful performance of all duties in
accordance with this section and sections five through eight, inclusive, of this article and the rules of
the governing board and the Council and Commission. In lieu of separate bonds for such buyers, a
blanket surety bond may be obtained. Any such bond shall be filed with the Secretary of State. The
cost of any such bond shall be paid from funds appropriated to the applicable governing board or the
Council or Commission.
(g) (k) All purchases and acquisitions shall be made in consideration and within limits of
available appropriations and funds and in accordance with applicable provisions of article two,
chapter five-a of this code relating to expenditure schedules and quarterly allotments of funds.
Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the
dollar amount for competitive sealed bids in this section are required to be encumbered and they may
be entered into the state's centralized accounting system by the staff of the Commission, Council or
governing boards to satisfy the requirements of article two, chapter five-a of this code and specifically
sections twenty-six, twenty-seven and twenty-eight of said article to determine whether the amount
of the purchase is within the Commission's, Council's or governing board's quarterly allotment, is
in accordance with the approved expenditure schedule and otherwise conforms to the provisions of
said article.
(h) (l) The governing boards, Council and Commission may make requisitions upon the
Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the
total of the appropriations for the governing board, Council or Commission, and the Auditor shall
draw a warrant upon the Treasurer for such accounts. All advance allowance accounts shall be
accounted for by the applicable governing board or the Council or Commission once every thirty days
or more often if required by the State Auditor.
(i) (m) Contracts entered into pursuant to this section shall be signed by the applicable
governing board or the Council or Commission in the name of the state and shall be approved as to
form by the Attorney General. A contract which requires approval as to form by the Attorney General
is considered approved if the Attorney General has not responded within fifteen days of presentation
of the contract. A contract or a change order for that contract and notwithstanding any other provision
of this code to the contrary, associated documents such as performance and labor/material payments,
bonds and certificates of insurance which use terms and conditions or standardized forms previously
approved by the Attorney General and do not make substantive changes in the terms and conditions
of the contract do not require approval by the Attorney General. The Attorney General shall make
a list of those changes which he or she deems considers to be substantive and the list, and any changes
thereto, shall be published in the State Register. A contract that exceeds the dollar amount requiring
competitive sealed bids in this section shall be filed with the State Auditor. If requested to do so, the
governing boards, Council or Commission shall make all contracts available for inspection by the
State Auditor. The governing board, Council or Commission, as appropriate, shall prescribe the
amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit
or bond to be given for the faithful performance of a contract.
(j) (n) If the governing board, Council or Commission purchases or contracts for materials,
supplies, equipment, services and printing contrary to the provisions of sections four through seven
of this article or the rules pursuant thereto, such purchase or contract is void and of no effect.
(k) (o) Any governing board or the Council or Commission, as appropriate, may request the Director of purchases to make available, from time to time, the facilities and services of that
department to the governing boards, Council or Commission in the purchase and acquisition of
materials, supplies, equipment, services and printing and the director of purchases shall cooperate
with that governing board, Council or Commission, as appropriate, in all such purchases and
acquisitions upon such request.
(l) (p) Each governing board or the Council or Commission, as appropriate, shall permit
private institutions of higher education to join as purchasers on purchase contracts for materials,
supplies, services and equipment entered into by that governing board or the Council or Commission.
Any private school desiring to join as purchasers on such purchase contracts shall file with that
governing board or the Council or Commission an affidavit signed by the president of the institution
of higher education or a designee requesting that it be authorized to join as purchaser on purchase
contracts of that governing board or the Council or Commission, as appropriate. The private school
shall agree that it is bound by such terms and conditions as that governing board or the Council or
Commission may prescribe and that it will be responsible for payment directly to the vendor under
each purchase contract.
(m) (q) Notwithstanding any other provision of this code to the contrary, the governing boards,
Council and Commission, as appropriate, may make purchases from cooperative buying groups,
consortia, the federal government or from federal government contracts if the materials, supplies,
services, equipment or printing to be purchased is available from cooperative buying groups,
consortia, the federal government or from a federal contract and purchasing from the cooperative
buying groups, consortia, federal government or from a federal government contract would be the
most financially advantageous manner of making the purchase.
(n) (r) An independent performance audit of all purchasing functions and duties which are
performed at any institution of higher education, except Marshall University and West Virginia
University, shall be performed each fiscal year. The Joint Committee on Government and Finance
shall conduct the performance audit and the governing boards, Council and Commission, as appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing
boards, Council or Commission.
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
shall provide for independent performance audits of all purchasing functions and duties on their
campuses at least once in each three-year period.
(2) Each audit shall be inclusive of the entire time period that has elapsed since the date of the
preceding audit.
(3) Copies of all appropriate documents relating to any audit performed by the Governing
Boards of Marshall University and West Virginia University shall be furnished to the Joint Committee
on Government and Finance and the Legislative Oversight Commission on Education Accountability
within thirty days of the date the audit report is completed.
(o) (s) The governing boards shall require each institution under their respective jurisdictions
to notify and inform every vendor doing business with that institution of the provisions of section
fifty-four, article three, chapter five-a of this code, also known as the Prompt Pay Act of 1990.
(p) (t) Consultant services, such as strategic planning services, may not preclude or inhibit the
governing boards, Council or Commission from considering any qualified bid or response for delivery
of a product or a commodity because of the rendering of those consultant services.
(q) (u) After the Commission or Council, as appropriate, has granted approval for
lease-purchase arrangements by the governing boards, a governing board may enter into
lease-purchase arrangements for capital improvements, including equipment, except the Governing
Boards of Marshall University and West Virginia University are authorized to enter into
lease-purchase arrangements for the state institutions of higher education known as Marshall
University and West Virginia University without seeking the approval of the Commission or the
Council. Any lease-purchase arrangement so entered shall constitute a special obligation of the State
of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any
funds legally available to the institution and must be cancelable at the option of the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof,
never constitutes an indebtedness of the State of West Virginia or any department, agency or political
subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and
may not be a charge against the general credit or taxing powers of the state or any political
subdivision thereof. Such facts shall be plainly stated in any lease-purchase agreement. Further, the
lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and
the approval of the Attorney General of West Virginia. Proposals for any arrangement must be
requested in accordance with the requirements of this section and any rules or guidelines of the
Commission and Council. In addition, any lease-purchase agreement which exceeds one hundred
thousand dollars total shall be approved by the Attorney General of West Virginia. The interest
component of any lease-purchase obligation is exempt from all taxation of the State of West Virginia,
except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the requirements
set forth in the Internal Revenue Code of 1986, as amended, and any regulations promulgated
pursuant thereto are met, the interest component of any lease-purchase obligation also is exempt from
the gross income of the recipient for purposes of federal income taxation and may be designated by
the governing board or the president of the institution as a bank-qualified obligation.
(r) (v) Notwithstanding any other provision of this code to the contrary, the Commission,
Council and governing boards have the authority, in the name of the state, to lease, or offer to lease,
as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as
provided below:
(1) The Commission, Council and governing boards have sole authority to select and to
acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is
necessarily required by the Commission, Council or governing boards for the institutions under their
jurisdiction. For state institutions of higher education other than Marshall University and West
Virginia University, the Chief Executive Officer of the Commission, Council or an institution shall
certify the following:
(A) That the grounds, buildings, office space or other space requested is necessarily required
for the proper function of the Commission, Council or institution;
(B) That the Commission, Council or institution will be responsible for all rent and other
necessary payments in connection with the contract or lease; and
(C) That satisfactory grounds, buildings, office space or other space is not available on
grounds and in buildings currently owned or leased by the Commission, Council or the institution.
Before executing any rental contract or lease, the Commission, Council or a governing board
shall determine the fair rental value for the rental of the requested grounds, buildings, office space
or other space, in the condition in which they exist, and shall contract for or lease the premises at a
price not to exceed the fair rental value.
(2) The Commission, Council and governing boards are authorized to enter into long-term
agreements for buildings, land and space for periods longer than one fiscal year but not to exceed
forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new
buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to
the provisions of this subsection shall be presented by the policy Commission or Council, as
appropriate, to the Joint Committee on Government and Finance for prior review. Any such lease
shall contain, in substance, all the following provisions:
(A) That the Commission, Council or governing board, as lessee, has the right to cancel the
lease without further obligation on the part of the lessee upon giving thirty days' written notice to the
lessor at least thirty days prior to the last day of the succeeding month;
(B) That the lease is considered canceled without further obligation on the part of the lessee
if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise
acts to impair the lease or cause it to be canceled; and
(C) That the lease is considered renewed for each ensuing fiscal year during the term of the
lease unless it is canceled by the Commission, Council or governing board before the end of the
then-current fiscal year.
(3) The Commission, Council or institution which is granted any grounds, buildings, office
space or other space leased in accordance with this section may not order or make permanent changes
of any type thereto, unless the Commission, Council or governing board, as appropriate, has first
determined that the change is necessary for the proper, efficient and economically sound operation
of the institution. For purposes of this section, a "permanent change" means any addition, alteration,
improvement, remodeling, repair or other change involving the expenditure of state funds for the
installation of any tangible thing which cannot be economically removed from the grounds, buildings,
office space or other space when vacated by the institution.
(4) Leases and other instruments for grounds, buildings, office or other space, once approved
by the Commission, Council or governing board, may be signed by the Chief Executive Officer of
the Commission, Council or institution. Any lease or instrument exceeding one hundred thousand
dollars annually shall be approved as to form by the Attorney General. A lease or other instrument
for grounds, buildings, office or other space that contains a term, including any options, of more than
six months for its fulfillment shall be filed with the State Auditor.
(5) The Commission and Council jointly may promulgate rules they consider necessary to
carry out the provisions of this section. The Governing Boards of Marshall University and West
Virginia University shall promulgate rules pursuant to section six, article one of this chapter to
implement the provisions of this section.
(s) (w) Purchasing card use may be expanded by the Council, Commission and state
institutions of higher education pursuant to the provisions of this subsection.
(1) The Council and Commission jointly shall establish procedures to be implemented by the
Council, Commission and any institution under their respective jurisdictions using purchasing cards.
The procedures shall ensure that each maintains:
(A) Appropriate use of the purchasing card system;
(B) Full compliance with the provisions of article three, chapter twelve of this code relating
to the purchasing card program; and
(C) Sufficient accounting and auditing procedures for all purchasing card transactions.
(2) By the first day of November, two thousand four, the Council and Commission jointly
shall present the procedures to the Legislative Oversight Commission on Education Accountability
for its adoption.
(3) Notwithstanding any other provision of this code to the contrary, if the Legislative
Oversight Commission on Education Accountability adopts the procedures, the Council, Commission,
and any institution authorized pursuant to subdivision (4) of this subsection, may use purchasing cards
for:
(A) Travel expenses directly related to the job duties of the traveling employee, including fuel
and food; and
(B) Any routine, regularly scheduled payment, including, but not limited to, utility payments
and real property rental fees. The Council, Commission and each institution, annually by the thirtieth
day of June, shall provide to the State Purchasing Division a list of all goods or services for which
payment was made pursuant to this provision during that fiscal year.
(4) The Commission and Council each shall evaluate the capacity of each institution under
its jurisdiction for complying with the procedures established pursuant to subdivision (3) of this
subsection. The Commission and Council each shall authorize expanded use of purchasing cards
pursuant to said subdivision for any such institution it determines has the capacity to comply.
§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other
unneeded materials.
(a) The Commission, the Council and the governing boards shall dispose of obsolete and
unusable equipment, surplus supplies and other unneeded materials, either by transfer to other
governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The
Commission, the Council and each governing board shall adopt rules governing and controlling the
disposition of all such equipment, supplies and materials.
(1) At least ten days prior to the disposition, the Commission, the Council or the governing boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which
the equipment, supplies and materials are located, the availability or sales of such disposable
equipment, supplies and materials.
(2) The Commission, the Council or governing boards, as applicable, may sell the disposable
equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may
transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer,
exchange or trade, then without advertising), in whole or in part, as sound business practices may
warrant under existing circumstances and conditions.
(3) The requirements set forth in this subsection apply to Marshall University and West
Virginia University only to the extent that those items of obsolete and unusable equipment, surplus
supplies and other unneeded materials exceed five thousand dollars in recorded net book value.
Marshall University and West Virginia University may dispose of obsolete and unusable computers
and computer-related equipment pursuant to the provisions of section two, article three of this
chapter.
(b) The Commission, Council or governing board, as appropriate, except for Marshall
University and West Virginia University, shall report semiannually annually to the Legislative
Auditor, all sales of commodities made during the preceding six months.
(1) The report shall include a description of the commodities sold, the name of the buyer to
whom each commodity was sold, and the price paid by the buyer.
(2) Marshall University and West Virginia University shall report biennually to the Legislative
Auditor the total sales of commodities made during the preceding biennium along with the total
recorded net book value of such commodities.
(c) The proceeds of sales or transfers shall be deposited in the State Treasury to the credit on
a pro rata basis of the fund or funds from which the purchase of the particular commodities or
expendable commodities was made. The Commission, Council or governing board, as appropriate, may charge and assess fees reasonably related to the costs of care and handling with respect to the
transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to
the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
(a) The Governing Boards of Marshall University and West Virginia University each shall
ensure the fiscal integrity of its operations using best business and management practices.
(1) The practices include at least the following:
(A) Complying with Generally Accepted Accounting Principles of the Governmental
Accounting Standards Board (GAAP); and the Generally Accepted Government Auditing Standards
of the Government Accountability Office (GAGAS);
(B) Operating without material weakness in internal controls as defined by GAAP, GAGAS
and, where applicable, the Office of Management and Budget (OMB) Circular A-133;
(C) Maintaining annual audited financial statements with an unqualified opinion;
(D) Presenting annual audited financial statements to the respective governing board;
(E) Maintaining quarterly financial statements certified by the chief financial officer of the
institution; and
(F) Implementing best practices from Sarbanes-Oxley, or adopting the applicable tenets of
Sarbanes-Oxley as best practices.
(2) Marshall University, West Virginia University and the research corporation of each:
(A) Shall comply with the OMB Circular A-133 annual grant award audit requirements; and
(B) Is exempt from the provisions of section fourteen, article four, chapter twelve of this code.
(3) Within thirty days of the completion of the financial audit report, the Governing Boards
of Marshall University and West Virginia University each shall furnish to the Commission, the
Legislative Oversight Commission on Education Accountability, and the Joint Committee on
Government and Finance copies of the annual audited financial statements.
(a) (b) The Commission or Council, as appropriate, shall ensure the fiscal integrity of any electronic process conducted at its offices or at any institution and at all other institutions using best
business and management practices.
(b) (c) Marshall University, West Virginia University, the Council and the Commission each
shall implement a process whereby, to the maximum extent practicable, employees of Marshall
University, West Virginia University, the Council, Commission and any state institution all other state
institutions of higher education receive their wages via electronic transfer or direct deposit.
(c) (d) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this
code, and except as otherwise provided in this subsection, the amount of any purchase made with a
purchasing card used by the Council, the Commission or any other institution of higher education may
not exceed five thousand dollars.
(1) Subject to approval of the purchasing division of the department of administration Auditor,
any emergency payment and any routine, regularly scheduled payment, including, but not limited to,
utility payments, contracts and real property rental fees, may exceed this amount limit by an amount
to be determined by the Auditor.
(2) The Council, Commission or and any state institution of higher education may use a
purchasing card for travel expenses directly related to the job duties of the traveling employee. Where
approved by the auditor, such expenses may exceed five thousand dollars by an amount to be
determined by the auditor. Traveling expenses may include registration fees and airline and other
transportation reservations, if approved by the administrative head president of the institution.
Traveling expenses may not include fuel or food purchases except, the state institutions of higher
education known as Marshall University and West Virginia University may include in traveling
expenses the purchase of fuel and food.
(3) The state institutions known as Marshall University and West Virginia University each
shall maintain one purchasing card for use only in a situation declared an emergency by the
institution's president. The Council, Commission and each institution all other institutions shall
maintain one purchase card for use only in and for situations a situation declared an emergency by the president of the institution and approved by the appropriate chancellor. Such Emergencies may
include, but are not limited to, partial or total destruction of a campus facility; loss of a critical
component of utility infrastructure; heating, ventilation or air condition failure in an essential
academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or
national emergency situation that has a direct impact on the campus.
(d) (e) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this
code, or any other provision of this code or law to the contrary, by the thirtieth day of June, two
thousand four the Auditor shall accept any receiving report submitted in a format utilizing electronic
media. and from the effective date of this section The Auditor shall conduct any audit or
investigation of the Council, Commission or any institution at its own expense and at no cost to the
Council, Commission or institution.
(e) The Legislature finds that an emergency exists, and, therefore, by the first day of July, two
thousand three
(f) The Council and the Commission shall file an emergency the Commission each shall
maintain a legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a
of this code. The rule shall provide for institutions individually or cooperatively to maximize their
use of any of the following purchasing practices that are determined to provide a financial advantage:
(1) Bulk purchasing;
(2) Reverse bidding;
(3) Electronic marketplaces; and
(4) Electronic remitting.
(f) (g) Each institution shall establish a consortium with at least one other institution, in the
most cost-efficient manner feasible, to consolidate the following operations and student services:
(1) Payroll operations;
(2) Human resources operations;
(3) Warehousing operations;
(4) Financial transactions;
(5) Student financial aid application, processing and disbursement;
(6) Standard and bulk purchasing; and
(7) Any other operation or service appropriate for consolidation as determined by the Council
or Commission.
(g) (h) An institution may charge a fee to each institution for which it provides a service or
performs an operation. The fee rate shall be in the best interest of both the institution being served
and the providing institution, as approved by the Council and Commission.
(h) (i) Any community and technical college, college and university may provide the services
authorized by this section for the benefit of any governmental body or public or private institution.
(i) Commencing with the two thousand four fall academic term
(j) Each institution shall reduce strive to minimize its number of low-enrollment sections of
introductory courses. To the maximum extent practicable, institutions shall use distance learning to
consolidate the course sections. Marshall University, West Virginia University, the Council and
Commission shall report the progress of the reduction to reductions as requested by the Legislative
Oversight Commission on Education Accountability. by the first day of December, two thousand four
(j) (k) An institution shall use its natural resources and alternative fuel resources to the
maximum extent feasible. The institution:
(1) May supply the resources for its own use and for use by any other institution; The
institution
(2) May supply the resources to the general public at fair market value; An institution
(3) Shall maximize all federal or grant funds available for research regarding alternative
energy sources; and
(4) May develop research parks to further the purpose of this section and to expand the
economic development opportunities in the state.
(k) (l) Any cost-savings realized or fee procured or retained by an institution pursuant to implementation of the provisions of this section shall be is retained by the institution.
(l) In assuring the fiscal integrity of processes implemented under this section, at a minimum,
the Commission has the following responsibilities:
(1) To conduct a performance audit of the policies, procedures and results of the procurement
of goods and service by the state institutions of higher education;
(2) To make progress reports on the implementation of this section to the Legislative
Oversight Commission on Education Accountability throughout the two thousand three interim
meetings period;
(3) To make a comprehensive report to the Legislative Oversight Commission on Education
Accountability by the first day of December, two thousand three, on the result of the performance
audit, together with any recommendations for additional actions that might be taken to improve the
efficiency, effectiveness and economy of the administrative operations of the state institution of
higher education, and the Commission.
(m) The provisions of subsection (b) of this section do not apply to the state institutions
known as Marshall University and West Virginia University. Each is authorized but not required to
comply with the provisions of subsections (f), (g) and (h) of this section.
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
each shall promulgate a rule on purchasing procedures pursuant to the provisions of section six,
article one of this chapter. Neither institution is subject to the rules required by said subsection (f).
(2) If either governing board elects to implement the provisions of said subsection (g), the
following conditions apply:
(A) The governing board makes the determination regarding any additional operation or
service which is appropriate for consolidation without input from the Council or Commission;
(B) The governing board sets the fee charged to any institution for which it provides a service
or performs an operation. The fee rate shall be in the best interest of both the institution being served
and the providing institution, but it is not subject to approval by the Council or Commission; and
(C) The governing board may not implement the provisions of this subdivision in a manner
which supercedes the requirements established in section twelve, article three-c of this chapter.
(m) The Commission shall report annually to the Legislative Oversight Commission on
Education Accountability regarding any savings achieved by implementing the provisions of this
section.
§18B-5-10. Medical professional liability insurance and risk management functions.
(a) The Legislature finds that, while recent reforms have helped to address the rising costs and
limited availability of medical malpractice and risk management insurance in West Virginia, the
state's doctoral-granting research universities and their medical schools continue to face significant
challenges related to the cost and operation of insurance and risk management programs.
(b) The Legislature further finds that the availability of cost-efficient insurance and risk
management programs is essential to the long-term financial integrity and viability of these
universities and their medical and other health professional schools.
(c) It is the responsibility of the Legislature to make the best use of available resources and
to assure the availability of high quality medical education to meet the needs of the citizens of the
state.
(d) Therefore, to aid the medical and other health professional schools in meeting these goals
and objectives, the following program is authorized:
(1) Upon the agreement of the West Virginia State Board of Risk and Insurance Management,
the health professionals schools under the jurisdiction of the Governing Boards of Marshall
University and West Virginia University, respectively, and the West Virginia School of Osteopathic
Medicine may participate, separately, in a self-insurance retention program in conjunction with the
state insurance program administered by the West Virginia State Board of Risk and Insurance
Management to provide medical professional liability coverage to its health care professionals and
students.
(2) In administering the self-insurance retention program, each governing board has the authority to administer, manage and/or settle its own medical professional liability insurance claims.
(e) Notwithstanding the provisions of article twelve, chapter twenty-nine of this code, the
West Virginia State Board of Risk and Insurance Management is hereby authorized and empowered
to enter into separate agreements with the health professionals schools under the jurisdiction of the
Governing Boards of Marshall University and West Virginia University, respectively, and with the
West Virginia School of Osteopathic Medicine to develop and implement a self-insurance retention
program for medical professional liability insurance.
(f) Prior to the implementation of any self-insurance retention program, the Governing Boards
of Marshall University, West Virginia University and the West Virginia School of Osteopathic
Medicine, respectively, shall submit the proposed program plan to the state Insurance Commissioner
for review:
(1) The review shall include, but is not limited to, claims handling procedures, investment
policies, and reserving practices.
(2) A governing board may not implement a plan until it has been reviewed by the state
Insurance Commissioner.
(g) The Insurance Commissioner and Board of Risk and Insurance Management each may
promulgate an emergency rule as necessary pursuant to the provisions of article three, chapter twenty-
nine-a of this code, to specify further the requirements of self-insurance retention programs under this
section.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS
OF HIGHER EDUCATION.
§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.
(a) Each governing board shall fix tuition and other fees for each school term for the different
classes or categories of students enrolling at each state institution of higher education under its
jurisdiction and may include among the tuition and fees any one or more of the following as defined
in section one-b of this article:
(1) Tuition and required educational and general fees;
(2) Auxiliary and auxiliary capital fees; and
(3) Required educational and general capital fees.
(b) An institution may establish a single special revenue account for each of the following
classifications of fees:
(1) All tuition and required educational and general fees collected;
(2) All auxiliary and auxiliary capital fees collected; and
(3) All required educational and general capital fees collected to support existing systemwide
and institutional debt service and future systemwide and institutional debt service, capital projects and
campus renewal for educational and general facilities.
(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable
from such accounts, an institution may expend funds from each such special revenue account for any
purpose for which funds were collected within that account regardless of the original purpose for
which the funds were collected.
(c) The purposes for which tuition and fees may be expended include, but are not limited to,
health services, student activities, recreational, athletic and extracurricular activities. Additionally,
tuition and fees may be used to finance a student's attorney to perform legal services for students in
civil matters at the institutions: Provided, That the legal services are limited only to those types of
cases, programs or services approved by the administrative head of the institution where the legal
services are to be performed.
(d) The Commission and Council jointly shall propose a rule for legislative approval in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the
fixing, collection and expenditure of tuition and other fees.
(e) The Legislature finds that an emergency exists and, therefore, the Commission and Council
jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to
the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior approval of the Legislative Oversight Commission on Education Accountability.
(f) The schedule of all tuition and fees, and any changes therein, shall be entered in the
minutes of the meeting of the appropriate governing board and the board shall file with the
Commission or Council, or both, as appropriate, and the Legislative Auditor a certified copy of such
schedule and changes.
(g) The boards shall establish the rates to be charged full-time students, as defined in section
one-b of this article, who are enrolled during a regular academic term.
(1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have
their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate
students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata
based upon one ninth of the full-time rate per credit hour.
(2) Fees for students enrolled in summer terms or other nontraditional time periods shall be
prorated based upon the number of credit hours for which the student enrolls in accordance with the
above provisions.
(h) All fees are due and payable by the student upon enrollment and registration for classes
except as provided in this subsection:
(1) The governing boards shall permit fee payments to be made in installments over the course
of the academic term. All fees shall be paid prior to the awarding of course credit at the end of the
academic term.
(2) The governing boards also shall authorize the acceptance of credit cards or other payment
methods which may be generally available to students for the payment of fees. The governing boards
may charge the students for the reasonable and customary charges incurred in accepting credit cards
and other methods of payment.
(3) If a governing board determines that a student's finances are affected adversely by a legal
work stoppage, it may allow the student an additional six months to pay the fees for any academic
term. The governing board shall determine on a case-by-case basis if the finances of a student are affected adversely.
(4) The Commission and Council jointly shall propose a rule in accordance with the
provisions of article three-a, chapter twenty-nine-a of this code, defining conditions under which an
institution may offer tuition and fee deferred payment plans through the institution or through third
parties.
(5) An institution may charge interest or fees for any deferred or installment payment plans.
(i) In addition to the other fees provided in this section, each governing board may impose,
collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest
research group if the students at the institution demonstrate support for the increased fee in a manner
and method established by that institution's elected student government. The fee may not be used to
finance litigation against the institution.
(j) Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or
other purposes in accordance with the tuition rule proposed by the Commission and Council jointly
pursuant to this section. The tuition rule shall:
(1) Provide a basis for establishing nonresident tuition and fees;
(2) Allow institutions to charge different tuition and fees for different programs;
(3) Provide that a board of governors may propose to the Commission, Council or both, as
appropriate, a mandatory auxiliary fee under the following conditions:
(A) The fee shall be approved by the Commission, Council or both, as appropriate, and either
the students below the senior level at the institution or the Legislature before becoming effective;
(B) Increases may not exceed previous state subsidies by more than ten percent;
(C) The fee may be used only to replace existing state funds subsidizing auxiliary services
such as athletics or bookstores;
(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the
amount of money generated for the institution by the fees. All state subsidies for the auxiliary
services shall cease five years from the date the mandatory auxiliary fee is implemented;
(E) The Commission, Council or both, as appropriate, shall certify to the Legislature by the
first day of October in the fiscal year following implementation of the fee, and annually thereafter,
the amount of fees collected for each of the five years;
(4) Establish methodology, where applicable, to ensure that, within the appropriate time period
under the compact, community and technical college tuition rates for community and technical college
students in all independently accredited community and technical colleges will be commensurate with
the tuition and fees charged by their peer institutions.
(k) A penalty may not be imposed by the Commission or Council upon any institution based
upon the number of nonresidents who attend the institution unless the Commission or Council
determines that admission of nonresidents to any institution or program of study within the institution
is impeding unreasonably the ability of resident students to attend the institution or participate in the
programs of the institution. The institutions shall report annually to the Commission or Council on
the numbers of nonresidents and such other enrollment information as the Commission or Council
may request.
(l) Tuition and fee increases of the governing boards, except for the Governing Boards of the
state institutions of higher education known as Marshall University and West Virginia University, are
subject to rules adopted by the Commission and Council jointly pursuant to this section and in
accordance with the provisions of article three-a, chapter twenty-nine-a of this code.
(1) Subject to the provisions of subdivision (4) of this subsection, a governing board of an
institution under the jurisdiction of the Commission may propose tuition and fee increases of up to
nine and one-half percent for undergraduate resident students for any fiscal year. The nine and
one-half percent total includes the amount of increase over existing tuition and fees, combined with
the amount of any newly established, specialized fee which may be proposed by a governing board.
(2) A governing board of an institution under the jurisdiction of the Council may propose
tuition and fee increases of up to four and three quarters percent for undergraduate resident students
for any fiscal year. The four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which
may be proposed by a governing board.
(3) The Commission or Council, as appropriate, shall examine individually each request from
a governing board for an increase.
(4) The Governing Boards of Marshall University and West Virginia University, as these
provisions relate to the state institutions of higher education known as Marshall University and West
Virginia University, each may annually:
(A) Increase tuition and fees for undergraduate resident students to the maximum allowed by
this section without seeking approval from the Commission; and
(B) Set tuition and fee rates for post-baccalaureate resident students and for all nonresident
students, including establishing regional tuition and fee rates, reciprocity agreements or both.
(C) The provisions of this subdivision do not apply to tuition and fee rates of the
administratively linked institution known as Marshall Community and Technical College, the
administratively linked institution known as the Community and Technical College at West Virginia
University Institute of Technology and the regional campuses known as West Virginia University
Institute of Technology and West Virginia University at Parkersburg.
(5) Any proposed tuition and fee increase for state institutions of higher education other than
Marshall University and West Virginia University requires the approval of the Commission or
Council, as appropriate. In determining whether to approve or disapprove deny the governing board's
request, the Commission or Council shall determine the progress the institution has made toward
meeting the conditions outlined in this subdivision and shall make this determination the predominate
factor in its decision. The Commission or Council shall consider the degree to which each institution
has met the following conditions:
(A) Has maximized resources available through nonresident tuition and fee charges to the
satisfaction of the Commission or Council;
(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
(C) Is continuously pursuing the statewide goals for post-secondary education and the
statewide compact established in articles one and one-a of this chapter;
(D) Is implementing the efficiency measures required by section nine, article five of this
chapter;
(E) (D) Has demonstrated to the satisfaction of the Commission or Council that an increase
will be used to maintain high-quality programs at the institution;
(F) (E) Has demonstrated to the satisfaction of the Commission or Council that the institution
is making adequate progress toward achieving the goals for education established by the southern
regional education board; and
(G) (F) To the extent authorized, will increase by up to five percent the available tuition and
fee waivers provided by the institution. The increased waivers may not be used for athletics.
(2) (6) This section does not require equal increases among institutions or require any level
of increase at an institution.
(3) (7) The Commission and Council shall report to the Legislative Oversight Commission
on Education Accountability regarding the basis for each approval or denial as determined using the
criteria established in subdivision (1) (5) of this subsection.
(4) For fiscal year two thousand five only, a governing board of any institution under the
jurisdiction of the Commission may increase tuition and fees for undergraduate resident students by
one and one-half percent greater than the amount authorized by the Commission pursuant to the
provisions of this section.
(m) The amount of fees assessed immediately prior to the effective date of this act under the
provisions of this article relating to a higher education resource fee, a faculty improvement fee, a
medical education fee, a health professions fee and a student activities fee are included in the
appropriate tuition or fees classifications established under subsection (a) of this section.
§18B-10-5. Fee waivers -- Undergraduate schools.
Each governing board periodically may establish fee waivers for students in undergraduate
studies at institutions under its jurisdiction entitling recipients to waiver of tuition, capital and other
fees subject to the following conditions and limitations:
(a) Undergraduate fee waivers established by the Governing Boards of Marshall University
and West Virginia University, respectively, for the state institutions of higher education known as
Marshall University and West Virginia University, are subject to the provisions of section six-a of
this article;
(b) For the governing boards of A state institution institutions of higher education other than
the state institutions of higher education known as Marshall University and West Virginia University,
the following conditions apply:
(1) An institution may not have in effect at any time a number of undergraduate fee waivers
which exceeds five percent of the number of full-time equivalent undergraduate students registered
during the fall semester of the immediately preceding academic year.
(b) (2) Each undergraduate fee waiver entitles the recipient thereof to attend a designated state
institution of higher education without payment of the tuition, capital and other fees as may be
prescribed by the governing board and is for a period of time not to exceed eight semesters of
undergraduate study.
(c) (3) The governing board shall make rules pursuant to the provisions of section six, article
one of this chapter, governing the award of undergraduate fee waivers; the issuance and cancellation
of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the
recipients; and the rights and duties of the recipients with respect to the fee waivers. These rules may
not be inconsistent with the provisions of this section.
(d) (4) The awarding of undergraduate fee waivers shall be entered in the minutes of the
meetings of the governing board.
(e) (5) Students enrolled in an administratively-linked community and technical college shall
be awarded a proportionate share of the total number of undergraduate fee waivers awarded by a governing board. The number to be awarded to students of the community and technical college is
based upon the full-time equivalent enrollment of that institution.
§18B-10-6. Fee waivers - Professional and graduate schools.
In addition to the fee waivers authorized for undergraduate study by the provisions of section
five of this article, each governing board periodically may establish fee waivers for study in graduate
and professional schools under its jurisdiction, including medicine and dentistry, entitling the
recipients to waiver of tuition, capital, and other fees, subject to the following conditions and
limitations:
(a) West Virginia University may not have in effect at any time graduate and professional
school fee waivers in a number which exceeds ten percent of the number of full-time equivalent
graduate and professional students registered during the corresponding fall semester, spring semester
and summer term of the immediately preceding academic year. In addition to the above ten percent,
all graduate assistants employed by West Virginia university shall be granted a fee waiver. Graduate
and professional fee waivers established by the Governing Boards of Marshall University and West
Virginia University, respectively, are subject to the provisions of section six-a of this article;
(b) For the governing boards of state institutions of higher education other than Marshall
University and West Virginia University the following conditions apply:
(1) An institution may not have in effect at any time a number of graduate and professional
school fee waivers which exceeds five percent of the number of full-time equivalent graduate and
professional students registered during the corresponding fall semester, spring semester and summer
term of the immediately preceding academic year. In addition to the above five percent, all graduate
assistants employed by these institutions shall be granted a fee waiver.
(c) (2) Each graduate or professional school fee waiver entitles the recipient to waiver of the
tuition, capital and other fees as may be prescribed by the governing boards and is for a period of time
not to exceed the number of semesters normally required in the recipient's academic discipline.
(d) (3) The governing boards shall make rules pursuant to the provisions of section six, article one of this chapter, governing the award of graduate and professional school fee waivers; the issuance
and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee
waivers by the recipients; and the rights and duties of the recipients with respect to the fee waivers.
These rules may not be inconsistent with the provisions of this section.
(e) (4) The awarding of graduate and professional school fee waivers shall be entered in the
minutes of the meeting of each governing board.
§18B-10-6a. Undergraduate, graduate and professional fee waivers - Marshall University and
West Virginia University.
(a) Undergraduate fee waivers. --
(1) The Governing Boards of Marshall University and West Virginia University, respectively,
may establish fee waivers for students in undergraduate studies at institutions under their jurisdiction
which entitle recipients to waiver of tuition, capital and other fees, in whole or in part.
(2) Each undergraduate fee waiver is for a period of time not to exceed eight semesters of
undergraduate study.
(3) Each governing board shall promulgate rules pursuant to the provisions of section six,
article one of this chapter to govern the award of undergraduate fee waivers; the issuance and
cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers
by the recipients; and the rights and duties of the recipients with respect to the fee waivers. These
rules may not be inconsistent with the provisions of this section.
(4) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings
of the governing board.
(5) Students enrolled in an administratively linked community and technical college shall be
awarded a proportionate share of the total number of undergraduate fee waivers awarded by a
governing board. The number to be awarded to students of the community and technical college is
based upon the full-time equivalent enrollment of that institution.
(b) Graduate and professional school fee waivers. --
(1) In addition to the fee waivers authorized for undergraduate study by subsection (a) of this
section, the Governing Boards of Marshall University and West Virginia University, respectively,
may establish fee waivers for study in graduate and professional schools under its jurisdiction,
including medicine and dentistry, which entitle the recipients to waiver of tuition, capital, and other
fees, in whole or in part.
(2) Each graduate or professional school fee waiver entitles the recipient to waiver of the
tuition, capital, and other fees, in whole or in part, as may be prescribed by the governing boards and
is for a period of time not to exceed the number of semesters normally required in the recipient's
academic discipline.
(3) The governing boards shall promulgate rules pursuant to the provisions of section six,
article one of this chapter, governing the award of graduate and professional school fee waivers; the
issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the
fee waivers by the recipients; and the rights and duties of the recipients with respect to the fee
waivers. These rules may not be inconsistent with the provisions of this section.
(4) The awarding of graduate and professional school fee waivers shall be entered in the
minutes of the meeting of each governing board.
ARTICLE 11. MISCELLANEOUS INSTITUTES AND CENTERS.
§18B-11-7. Regional Brownfield Assistance Centers.
(a) For the purposes of this section, "eligible entities" means government entities as defined
by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, at 42 U. S. C. §9604 or nonprofit organizations as defined by the Federal Financial
Assistance Management Improvement Act at 31 U. S. C. §6101.
(b) Marshall University and West Virginia University each shall establish a nonprofit Regional
Brownfield Assistance Center through the corporations set out in article twelve of this chapter for the
purposes of expediting the redevelopment of Brownfield sites. The Centers shall provide assistance
to eligible entities on state and federal Brownfield programs, secure state and federal funding for Brownfield redevelopment and acquire property eligible for state and federal Brownfield assistance.
(b) The Center established by Marshall University serves the following counties:
(1) McDowell, Mercer, Monroe, Raleigh, Summers and Wyoming;
(2) Cabell, Lincoln, Logan, Mason, Mingo and Wayne;
(3) Boone, Clay, Kanawha and Putnam; and
(4) Braxton, Fayette, Greenbrier, Nicholas, Pocahontas and Webster.
(c) The Center established by West Virginia University serves the following counties:
(1) Calhoun, Jackson, Pleasants, Ritchie, Roane, Tyler, Wirt and Wood;
(2) Brooke, Hancock, Marshall, Ohio and Wetzel;
(3) Barbour, Doddridge, Gilmer, Harrison, Lewis, Marion, Monongalia, Preston, Randolph,
Taylor, Tucker and Upshur; and
(4) Berkeley, Grant, Hampshire, Hardy, Jefferson, Mineral, Morgan and Pendleton.
(d) To accomplish the purposes of this section, the Regional Brownfield Assistance Centers
each have powers and duties including, but not limited to, the following:
(1) Acquiring property that is eligible for state and federal Brownfield assistance pursuant to
the Small Business Liability Relief and Brownfields Revitalization Act (Public Law No. 107-118, 185
stat. 2356) and the West Virginia Voluntary Remediation and Redevelopment Act established in
article twenty-two, chapter twenty-two of this code;
(2) Serving as the developer of the property for the purposes of managing and coordinating
remediation and redevelopment activities;
(3) Preparing an inventory of Brownfield sites within their respective geographic regions by
the first day of July, two thousand six, and updating the inventory of sites on an annual basis;
(4) Promoting and coordinating the development of Brownfield property by providing training
and technical assistance on Brownfield development, grant writing, site assessments, remediation,
community involvement and site preparation to eligible entities;
(5) Administering federal Brownfield Job Training Grants, the Brownfields Revolving Fund, and other federal Brownfield financial assistance programs to assist eligible entities in their
Brownfield development efforts;
(6) Coordinating efforts to secure federal Brownfield funding by establishing priority rankings
and by other necessary measures to maximize federal financial assistance and eliminate overlapping
competition for federal dollars;
(7) Coordinating the development and publication by the first day of July, two thousand six,
of a website to provide education and appropriate information on Brownfields development in West
Virginia; and
(8) Coordinating with the West Virginia Development Office and the Department of
Environmental Protection to establish and track key Brownfield economic statistics and conduct
Brownfield conferences, as appropriate.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Legislative findings; creation of Governor's Commission on Graduate Study in
Science, Technology, Engineering, and Mathematics; membership;
report.
(a) The Legislature finds that West Virginia ranks below most other states on key indicators
of scientific and technical capacity, including the number of scientists and engineers who hold
doctoral degrees, the number of science and engineering post-doctorates and the number of science
and engineering graduate students.
(b) The Legislature further finds that this lack of scientific and technical capacity places the
state at a competitive disadvantage to other states in terms of generating economic development and
winning research grants, as evidenced by limited amounts of academic research and development
funding, industrial research and development, small business innovation grant awards,
technology-related start-up companies and the low number of high-tech jobs.
(c) To address these findings, there is created the Governor's Commission on Graduate Study
in Science, Technology, Engineering and Mathematics, which may be cited as the STEM Commission, to address issues which include, but are not limited to, the following:
(1) Promoting coordination between higher education and K-12 education to create a seamless
system of science and mathematics education and improve science and mathematics education at all
levels;
(2) Increasing the number of graduate students and post-doctorates in science, technology,
engineering and mathematics, including the number of women and minority graduate students in these
fields;
(3) Increasing the number of West Virginia undergraduate and graduate students who receive
nationally competitive scholarships and fellowships in science, technology, engineering and
mathematics, such as Goldwater, Howard Hughes, National Science Foundation and Udall
Fellowships;
(4) Improving the quality of graduate faculty and programs in science, technology, engineering
and mathematics;
(5) Aligning graduate programs in science, technology, engineering and mathematics with the
goals and objectives of the State EPSCoR Program, the State Science and Technology Advisory
Council, the West Virginia Development Office and the Doctoral Scholars Program of the Southern
Regional Education Board; and
(6) Increasing the quantity and enhancing the quality of academic research, as measured by
federal and external expenditures for research and development.
(d) STEM Commission membership. --
(1) The Commission is comprised of fourteen members selected as follows:
(A) The Governor or designee, who serves as Chair;
(B) The Chancellor for the Higher Education Policy Commission; (C) The Director of
Academic Affairs of the Higher Education Policy Commission;
(D) The Executive Director of the State EPSCoR Program;
(E) The Executive Director of the West Virginia Development Office or designee;
(F) The provosts of Marshall University and West Virginia University or their designees;
(G) Five members appointed by the Governor who represent academic, business and research
interests; and
(H) The Chair of the House of Delegates Committee on Education and the Chair of the West
Virginia Senate Committee on Education as ex officio, nonvoting members who serve in an advisory
capacity.
(2) At least two of the Governor's appointees are state residents.
(3) The Governor shall make appointments to the Commission so that members may begin
their deliberations no later than the first day of July, two thousand five.
(e) The Commission shall complete its work and report its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate the
recommendations, to the Legislative Oversight Commission on Education Accountability, the Higher
Education Policy Commission and the State EPSCoR Advisory Council by the first day of December,
two thousand five."
There being no further amendments, the bill was then ordered to third reading.
Com. Sub. for S. B. 666, Relating to exemptions for certain insurance companies from
business franchise tax and corporation net income tax; on second reading, coming up in regular order,
was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page three, section seven, line twenty, following the word "and", by
inserting the word "insurance".
And,
On page seven, section five, line eleven, following the word "and", by inserting the word
"insurance".
There being no further amendments, the bill was then ordered to third reading.
S. B. 669, Transferring certain election duties from circuit clerk to clerk of county commission; on second reading, coming up in regular order, was read a second time and advanced
to third reading with the amendments pending.
S. B. 705, Delaying effective date of Municipal Sales and Service Tax and Municipal Use
Tax; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Political Subdivisions, was reported by
the Clerk and adopted, amending the bill on page three, section four, line twenty-four, following the
word "impose" by striking out "a tax pursuant to subsection (a) of this section and that does not
impose".
There being no further amendments, the bill was then ordered to third reading.
S. B. 751, Making supplementary appropriation to Department of Transportation, Division
of Motor Vehicles; on second reading, coming up in regular order, was read a second time and
ordered to third reading.
Miscellaneous Business
Delegate Stephens announced that he was absent when the vote was taken on Roll Call 431,
and had he been present he would have voted "Yea" thereon.
At 12:56 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:00 p.m.,
and reconvened at that time.
*************
Evening Session
*************
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the
House of Delegates as follows:
Com. Sub. for H. B. 2417, Relating to compressed gas container safe transport.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 2492, Providing a funding mechanism for teen court programs.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Hunter, Foster and Barnes.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
H. B. 2669, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 21, Requesting the Department of Education to create a position in the Department
to coordinate, oversee and advocate for public school libraries.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 38, Requesting the executive departments to establish a coordinated succession
planning process which includes providing opportunities to correct the system-wide gender pay
disparity among state employees.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 44, Requesting the Joint Committee on Government and Finance study alternatives
to out-of -state placement of children committed to the care of the State of West Virginia.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 253, Permitting Insurance Commissioner waive or reduce penalty for late filing of tax
returns.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 256, Requiring insurance companies inform policyholders if flood damage not covered.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 459, Relating to reinsurance and insolvency liability.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 548, Relating to crime of assault and battery upon Public Service Commission motor
carrier inspectors.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment
and requested the House of Delegates to agree to the appointment of a Committee of Conference of
three from each house on the disagreeing votes of the two houses as to
S. B. 604, Establishing method for projecting increase in net enrollment for each school
district.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators Plymale, Unger and Facemyer.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Campbell, Williams and Duke.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment
of the House of Delegates and requested the House to recede from its amendment to
S. B.717, Permitting Wetzel County Hospital provide alternate retirement plan for new
employees.
On motion of Delegate Martin, the House of Delegates refused to recede from its amendment
and requested the Senate to agree to the appointment of a Committee of Conference of three from
each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Stalnaker, Browning and Duke.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 72 - "Honoring families of West Virginia soldiers who have made the ultimate sacrifice to our grateful nation and state by the presentation of a 'Mountaineer Freedom Medal'."
Whereas, For many generations, our state has given of its best--its sons and daughters--to
defend and advance the cause of freedom; and
Whereas, The paths of freedom are walked by brave souls who do not fear their own death,
but fear the death of a nation they have sworn to defend; and
Whereas, In times of war and turmoil, our state looks to its citizens and always finds a cadre
of soldiers who willingly and purposefully volunteer to keep true the motto of our great state,
"Mountaineers are Always Free"; and
Whereas, Each West Virginia soldier that has made the ultimate sacrifice in the giving of
his or her life in support of our nation has done so honorably; and
Whereas, The noble fallen should be forever honored among the heroes of West Virginia's
history; and
Whereas, The Legislature believes that those who die for their country should be recognized
by the living and that their contribution to the fundamental cause of freedom should be heralded;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature honor the families of West Virginia soldiers who have made the ultimate
sacrifice to our grateful nation and state by the presentation of a "Mountaineer Freedom Medal"; and,
be it
Further Resolved, That a "Mountaineer Freedom Medal" be designed, created and presented
to the families of these soldiers as a lasting reminder of the service these brave soldiers endured in
support of liberty and freedom; and, be it
Further Resolved, That the Legislature hereby requests the Governor establish and present to
the families of these fallen soldiers this token of gratefulness and appreciation on behalf of the
citizens of West Virginia; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned
to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
H.B. 2005, Budget Bill, making appropriations of public money out of the treasury in
accordance with section fifty-one, article six of the Constitution,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 2005-"A Bill making appropriations of public money out of the treasury
in accordance with section fifty-one, article VI of the constitution,"
With the recommendation that the committee substitute do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for H. B. 2005) was taken up for immediate consideration, read a first time and then ordered to second
reading.
On motion for leave, a resolution was introduced (Originating in the Committee on Education
and reported with the recommendation that it be adopted), which was read by its title, as follows:
By Delegates Campbell, Williams, Beach, Canterbury, Crosier, Duke, Eldridge, Fragale,
Lane, Leggett, Longstreth, Louisos, Marshall, Paxton, Perry, Poling, Roberts, Spencer,
Stephens, Stevens, Sumner, Tabb, Tansill, Wells and Wysong
:
H. C. R. 100 - "A Resolution expressing support of the College Summit program and
Requesting the Joint Committee on Government and Finance to make a study on finding funding to
help College Summit in its goal to assist West Virginia's students in furthering their education.
Whereas, One of the most important public policy and economic development goals for West
Virginia is to increase the state's college-going and college graduation rates; and,
Whereas, The goal of College Summit is to encourage West Virginia students to further their
education in college and increase the enrollment of higher education institutions in the state; and
Whereas, Every year in the United States, over 220,000 low-income students high-school
graduates that are capable of succeeding in college, but do not go; and,
Whereas, Over 3,500 of those students are in West Virginia; and,
Whereas, College Summit provides the chance of these students to showcase their abilities
and achieve at the highest level; and
Whereas, Participants complete college applications during a four day summer workshop and
receive assistance in creating Senior Portfolios; and,
Whereas, College Summit equips West Virginia students with the knowledge that is
necessary to apply and be accepted to college; and,
Whereas, College Summit offers many students the opportunity to harness their energy and
focus their abilities into furthering their education; and,
Whereas, Since 1993, College Summit has nearly doubled the enrollment rates of low-
income students from participating schools across the nation; and
Whereas, Seventy nine percent of College Summit students have enrolled in college versus
the national rate of forty six percent of all high school graduates; and,
Whereas, College Summit students have obtained over $21 million in college scholarships
to attend higher education institutions that match their academic, social, financial needs; and,
Whereas, Many West Virginia students would not have attended college if not for College
Summit and many more students would benefit from College Summit if the program were offered
th them; therefore, be it,
Resolved by the Legislature of West Virginia:
Expresses support of the College Summit program ad Requests the Joint Committee on
Government and Finance to make a study on methods for securing funding to support College
Summit in its goal to assist West Virginia's students in furthering their education.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 147, Limiting purchase of substances used in production of
methamphetamine,
And,
S. B. 735, Relating to cancellation of motor vehicle agreement,
And reports the same back, with amendment, by 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 bills (Com. Sub.
for S. B. 147 and S. B. 735) were taken up for immediate consideration, read a first time, ordered to
second reading and then, in accordance with the provisions of House Rule 70a, was ordered to the
Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 254, Relating to reinsurance intermediaries,
And,
S. B. 748, Providing credit for mitigation required as component of Army Corps of Engineers,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 254
and S. B. 748) were taken up for immediate consideration, read a first time and then 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 had under consideration:
Com. Sub. for S. B. 676, Relating to racial profiling during traffic stops,
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 bill (Com. Sub.
for S. B. 676) was taken up for immediate consideration, read a first time and then 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 had under consideration:
S. B. 703, Providing consistency in filing procedures for all organization types and cleaning
up outdated language,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 703)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
On motion for leave, a bills were introduced (Originating in the Committee on Finance and
reported with the recommendation that they each do pass), which were read by their titles, as follows:
By Delegates Michael, Doyle, Stalnaker, Williams, Proudfoot, Cann, Frederick,
Palumbo, Anderson and Ashley:
H. B. 3363 - "A Bill supplementing, amending, reducing and adding a new item to the
existing appropriations from the state fund, general revenue, to the department of military affairs and
public safety - division of corrections - correctional units, fund 0450, fiscal year 2005, organization
0608, all supplementing and amending the appropriation for the fiscal year ending the thirtieth day
of June, two thousand five,"
And,
By Delegates Michael, Varner, Kominar, Frederick, Williams, Boggs, Stalnaker,
Proudfoot, H. White and Hall:
H. B. 3364 - "A Bill making a supplementary appropriation of federal funds out of the
treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending the
thirtieth day of June, two thousand five, to the department of environmental protection - division of
environmental protection, fund 8708, fiscal year 2005, organization 0313, all supplementing and
amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand five."
At the respective requests of Delegate Staton, and by unanimous consent, the bills (H. B. 3363
and H. B. 3364) were taken up for immediate consideration, read a first time and then ordered to
second reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 348, Clarifying when audits are required of state funds or grants; penalty,
S. B. 524, Transferring centralized accounting system from Department of Administration to
Auditor's Office,
S. B. 526, Allowing credit against taxpayer's tax liability for contributions to community
foundations,
S. B. 628, Establishing State Trails Coordinator and appointment of State Trails Advisory
Committee,
Com. Sub. for S. B. 729, Authorizing magistrate courts order home incarceration,
And reports the same back without recommendation but with the recommendation that they
be recommitted to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com. Sub.
for S. B. 348, S. B. 5243, S. B. 526, S. B. 628 and Com. Sub. for S. B. 729) were taken up for
immediate consideration, read a first time, ordered to second reading and then recommitted to the Committee on Finance.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S. B. 521, Requiring study on flood and general property insurance for State Board of
Education,
And,
Com. Sub. for S. B. 558, Relating to management and investment of public funds,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 521
and Com. Sub. for S. B. 558) were taken up for immediate consideration, read a first time and then
ordered to second reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 661, Relating to juvenile proceedings and multidisciplinary teams,
S. B. 710, Providing small grants program for Tourism Promotion Fund,
S. B. 746, Reducing rate of tax paid on privilege of severing timber after certain date,
Com. Sub. for 428, Relating to Rehabilitation Environmental Action Plan,
Com. Sub. for 587, Relating to appointment of counsel in abuse and neglect cases,
And,
S. B. 622, Clarifying exemption for property used by certain not-for-profit, tax-exempt
corporations,
And reports the same back, with amendment, with the recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (Com. Sub.
for S. B. 661, S. B. 710, S. B. 746, Com. Sub. for S. B. 428 and S. B. 622) was taken up for immediate consideration, read a first time and then 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 had under consideration:
S. B. 40, Limiting time purchaser of certain real estate at sheriff's sale may claim refund,
S. B. 166, Authorizing sale of certain land on Buffalo Creek, Logan County,
Com. Sub. for S. B. 245, Relating to regulating elections,
Com. Sub. for S. B. 289, Allowing fill material in waters of state; definition,
S. B. 406, Establishing Uniform Environmental Covenants Act,
S. B. 463, Allowing supplemental assessment on personal property when omitted from record
books,
Com. Sub. for S. B. 473, Relating to crime of cyber-shoplifting,
And,
S. B. 585, Allowing disclosure of juvenile records in certain cases,
And reports the same back without recommendation as to their passage.
At the respective requests of Delegate Staton, and by unanimous consent, the bills (S. B. 40,
S. B. 166, Com. Sub. for S. B. 245, Com. Sub. for S. B. 289, S. B. 406, S. B. 463, Com. Sub. for S.
B. 473 and S. B. 585) were taken up for immediate consideration, read a first time, ordered to second
reading and then recommitted to the Committee on the Judiciary.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 421, Relating to apportionment of damages in court actions involving tortious conduct
in certain cases,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 198, Relating to fire safety standards for bed and breakfast establishments,
And reports the same back, with amendment, by unanimous vote of the Committee, with the
recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 198)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to 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:
Com. Sub. for S. B. 159, Creating Consolidated Local Government Act,
And reports the same back, without recommendation as to its passage, but that it be taken up
and read a first time prior to being recommitted to the Committee on Government Organization.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 159) was taken up for immediate consideration, read a first time, ordered to second reading,
and then recommitted to Government Organization.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 439, Exempting certain carriers of solid waste from certificate of
convenience requirements,
And reports the same back, without recommendation as to its passage, but that it be taken up
and read a second time prior to being recommitted to the Committee on Government Organization.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 439) was taken up for immediate consideration, read a first time, ordered to second reading
and then recommitted to the Committee on Government Organization .
Chairman Beane, from the Committee on Government Organizations, submitted the following
report, which was received:
Your Committee on Government Organizations has had under consideration:
Com. Sub. for S. B. 194, Relating to Affordable Housing Trust Fund,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 194) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, 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:
S. B. 78, Expanding counties covered by Route 2 and Interstate 68 Authority,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 78)
was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 450, Prohibiting compensation of board members from receiving
compensation for certain travel days,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 450) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to 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:
S. B. 737, Establishing time limit for licensing board to issue final ruling,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 737) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to 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:
Com. Sub for S. B. 485, Relating to powers and duties of Board of Pharmacy,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 505, Creating Indigent Defense Commission,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on Finance.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 505) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the former direction of the Speaker, referred to the Committee on
Finance.
At 7:00 p.m., the House of Delegates adjourned until 11:00 a.m., Friday, April 8, 2005.