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House Journal


Day 00 (01-14-2009)
Day 01 (02-11-2009)
Day 02 (02-12-2009)
Day 03 (02-13-2009)
Day 06 (02-16-2009)
Day 07 (02-17-2009)
Day 08 (02-18-2009)
Day 09 (02-19-2009)
Day 10 (02-20-2009)
Day 13 (02-23-2009)
Day 14 (02-24-2009)
Day 15 (02-25-2009)
Day 16 (02-26-2009)
Day 17 (02-27-2009)
Day 20 (03-02-2009)
Day 21 (03-03-2009)
Day 22 (03-04-2009)
Day 23 (03-05-2009)
Day 24 (03-06-2009)
Day 27 (03-09-2009)
Day 28 (03-10-2009)
Day 29 (03-11-2009)
Day 31 (03-13-2009)
Day 34 (03-16-2009)
Day 35 (03-17-2009)
Day 36 (03-18-2009)
Day 37 (03-19-2009)
Day 38 (03-20-2009)
Day 41 (03-23-2009)
Day 43 (03-25-2009)
Day 44 (03-26-2009)
Day 45 (03-27-2009)
Day 48 (03-30-2009)
Day 49 (03-31-2009)
Day 50 (04-01-2009)
Day 51 (04-02-2009)
Day 52 (04-03-2009)
Day 55 (04-06-2009)
Day 56 (04-07-2009)
Day 57 (04-08-2009)
Day 58 (04-09-2009)
Day 59 (04-10-2009)
Day 60 (04-11-2009)
Day 105 (05-26-2009)
Day 106 (05-27-2009)
Day 108 (05-29-2009)
Day 109 (05-30-2009)
Day 110 (05-31-2009)
hdj2009-04-11-60


__________*__________




Saturday, April 11, 2009

SIXTIETH DAY

[Mr. Speaker, Mr. Thompson, in the Chair]

                              

     The House of Delegates met at 10:00 a.m., and was called to order by the Honorable Richard Thompson, Speaker.
     Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
     The Clerk proceeded to read the Journal of Friday, April 10, 2009, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

     Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
     Your Committee on Rules has had under consideration:
     H. C. R. 58, Requesting the Legislature to establish a Joint Legislative Committee on Substance Abuse and Public Assistance,
     H. C. R. 65, Requesting that the Joint Committee on Government and Finance authorize the study of the financial condition and regulation of self-insurance pools,
     H. C. R. 77, Requesting a study of compensating state troopers for off-duty time when required to be on standby to be called back to work,
     H. C. R. 91, Requesting the Joint Committee on Government and Finance to conduct a study on establishing a program to permit medicine aides who are certified to administer certain drugs,
     H. C. R. 99, Requesting the Joint Committee on Government and Finance to make a study on adequate and appropriate responses to the mental health needs of students,
     H. C. R. 100, Requesting the Joint Committee on Government and Finance to make a study on potential alternative methods for assisting county boards to meet the facility needs of their school systems,
     H. C. R. 101, Requesting the Joint Committee on Government and Finance to make a study on improving the ability of public schools to effectively recruit and employ well qualified graduates,
     H. C. R. 114, Requesting the Joint Committee on Government and Finance to make a study on improving the ability of public schools to effectively recruit and employ well qualified graduates,
     H. C. R. 115, Requesting the Joint Committee on Government and Finance to study methods to remove the barriers to educational success that veterans face in the higher education system,
     H. C. R. 116, Requesting the Joint Committee on Government and Finance to study the need for personal leave benefits for higher education faculty,
     And,
     H. C. R. 119, The "Private First Class Thomas Keith Coleman Memorial Bridge",
     And reports the same back with the recommendation that they each be adopted.
     At the respective requests of Delegate Boggs, and by unanimous consent, the resolutions (H. C. R. 58, H. C. R. 65, H. C. R. 77, H. C. R. 91, H. C. R. 99, H. C. R. 100, H. C. R. 101, H. C. R. 114, H. C. R. 115, H. C. R. 116 and H. C. R. 119) were each taken up for immediate consideration and adopted.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
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. 2360, Insuring that tobacco products are not sold in any packaging other than the original.
     On motion of Delegate Boggs, the bill was taken up for immediate consideration.
     The following Senate amendment was reported by the Clerk:
     On page two, section ten, line two, by striking out the words "or distribution".
     On page two, section ten, line five, by striking out the words "or distribution".
     And,
     On page two, section, ten, line ten, by striking out the words "or distribution".
     On motion of Delegate Boggs, 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. 401), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
     Nays: McGeehan and Walters.
     Absent And Not Voting: Brown, Fleischauer and Hutchins.
     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. 2360) passed.
     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 passed, with amendments, a bill of the House of Delegates as follows:
     H. B. 2536, Adding language that includes railcars and locomotives in the category of railroad property that is illegal to interfere or tamper with.
     On motion of Delegate Boggs, 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 §61-3-28 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-28. Offenses against railroad property and persons on railroad property; definitions.

     (a) As used in this section:
     (1) 'Bodily injury' means substantial physical pain, illness or any impairment of physical injury.
     (2) 'Railroad' means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways, including:
     (i) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area; and
     (ii) High-speed ground transportation systems that connect metropolitan areas but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation;
     (3) 'Railroad carrier' means a person providing railroad transportation; railroad carrier including a right-of-way, track, bridge, yard, shop, station, tunnel, viaduct, trestle, depot, warehouse, terminal, railroad signal system, train control system, centralized dispatching system, or any other structure, appurtenance, or equipment owned, leased, or used in the operation of any railroad carrier including a train, locomotive, engine, railroad car, work equipment, rolling stock, or safety device. 'Railroad property' does not include administrative buildings, administrative offices, or administrative office equipment;
     (4) 'Right-of-way' means the track or roadbed owned, leased, or operated by a railroad carrier which is located on either side of its tracks and which is readily recognizable to a reasonable person as being railroad property or is reasonably identified as such by fencing or appropriate signs;
     (5) 'Yard' means a system of parallel tracks, crossovers, and switches where railroad cars are switched and made up into trains, and where railroad cars, locomotives and other rolling stock are kept when not in use or when awaiting repairs.
     (b) Whoever willfully damages or attempts to damage railroad property or willfully endangers or attempts to endanger the safety of another, by:
     (1) Taking, removing, altering, or otherwise vandalizing a railroad sign, placard or marker;
     (2) Throwing or dropping an object capable of causing significant damage to railroad property at or on a locomotive, railroad car or train;
     (3) Shooting a firearm or other dangerous weapon at a locomotive, railroad car or train;
     (4) Removing appurtenances from, damaging, or otherwise impairing the operation of any railroad signal system, including a train control system, centralized dispatching system, or highway-railroad grade crossing warning signal, on a railroad owned, leased, or operated by any railroad carrier, and without consent of the railroad carrier involved;
     (5) Interfering or tampering with, or obstructing in any way, or threatening to interfere with, tamper with or obstruct in any way any railcar or locomotive, switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or connected with any railroad carrier without consent of the railroad carrier involved; or
     (6) Taking, stealing, removing, changing, adding to, altering, or in any manner interfering with any part of the operating mechanism of any locomotive, engine, tender, coach, car, caboose, or motor car used or capable of being used by any railroad carrier in this state without consent of the railroad carrier is guilty of a felony.
     If railroad property damage does not exceed $1,000 and no bodily injury occurs to another as a result of any of the aforesaid acts, upon conviction thereof, the person shall be fined not less than $500 nor more than $5,000, confined in a regional jail for not more than one year, or both. If bodily injury occurs to another not acting with or in connection with the perpetrator as a result of any of the aforesaid acts or if railroad property damage exceeds $1,000, upon conviction thereof, the person shall be fined not less $1,000 nor more than $10,000, committed to the custody of the Commission of Corrections for not less than one nor more than ten years, or both.
     (d) The provisions of this section do not apply to any person employed by a railroad who is performing the duties assigned by the railroad or who is otherwise performing within the scope of his or her employment."
     And by amending the title of the bill to read as follows:
     H. B. 2536 - "A Bill to amend and reenact §61-3-28 of the Code of West Virginia, 1931, as amended, relating to offenses against railroad property, generally; adding language that includes railcars and locomotives in the category of railroad property that is illegal to interfere with, tamper with or obstruct, or to threaten to interfere with, to tamper with or obstruct; and establishing a minimum fine for violations."
     On motion of Delegate Boggs, 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. 402), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
     Absent And Not Voting: Fleischauer and Hutchins.
     So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2536) passed.
     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 passed, with amendments, a bill of the House of Delegates as follows:
     H. B. 2539, Authorizing professional licensing boards to combine administrative staff functions.
     On motion of Delegate Boggs, 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 the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §30-1-19, to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO STATE BOARDS.
§30-1-19. Combining board staff functions.

     (a) Any board referred to in this chapter may combine administrative staff functions with any other board or boards referred to in this chapter, pursuant to the provisions of subsection (b) of this section, to carry out the administrative duties of the boards as set forth in this article, the practice acts of each board set forth in this chapter and the legislative rules of each board: Provided, That each board retains responsibility for fulfilling its statutory duties.
     (b) Before combining administrative staff functions pursuant to subsection (a) of this section, the boards shall, in consultation with the office of the Attorney General, enter into a memorandum of understanding with the following provisions:
     (1) The names of the boards combining administrative staff functions;
     (2) The administrative staff functions being combined, including the staffs' titles and duties relative to each board;
     (3) The prorata share of expenses that each board will be responsible for paying, including salaries, office rent, office supplies, telephone, fax and computer services, travel expenses and any other expenses anticipated by the boards;
     (4) A description of how decisions will be made by the boards, including employment of staff, the staff's functions and duties, and any other necessary decisions;
     (5) A description of how modifications may be made to the terms of the agreement; and
     (6) Any other provisions necessary to set forth the agreement of the boards.
     (c) The boards that combine administrative staff functions pursuant to this section, may promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code, to make any necessary changes to facilitate the combining of administrative staff functions. The boards may also promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to correct any conflicts with a board's current rules."
     And by amending the title of the bill to read as follows:
     H. B. 2539 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-1-19, relating to professional licensing boards; authorizing the combining of administrative staff functions of boards; requiring consultation with the office of the Attorney General; requiring memorandum of understanding; and authorizing emergency rules and rulemaking."
     On motion of Delegate Boggs, 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. 403), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
     Absent And Not Voting: Fleischauer and Hutchins.
     So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2539) passed.
     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 passed, with amendments, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 2557, Relating to the enforcement of new motor vehicle warranties.      On motion of Delegate Boggs, the bill was taken up for immediate consideration.
     The following Senate amendments were reported by the Clerk:
     On page five, section three, line twenty-six, by striking out the word "article" and inserting in lieu thereof the word "section".
And,

     On page five, section three-a, line five, by striking out the words "$500 or more" and inserting in lieu thereof the words "five percent of the manufacturer's suggested retail price".
     And by amending the title of the bill to read as follows:
     Com. Sub. for H. B. 2557- "A Bill to amend and reenact §46A-6A-2, §46A-6A-3 and §46A-6A-3a of the Code of West Virginia, 1931, as amended, all relating to repairing or replacing a new motor vehicle under a new motor vehicle warranty; providing a definition of 'motor vehicle'; making the provisions related to the enforcement of new motor vehicle warranties applicable to vehicles registered and titled in this state, regardless of where the vehicle was purchased; setting forth the liability of an authorized dealer as to new motor vehicle warranties; and disclosing to a consumer in writing as to any repairs made by an authorized dealer to a new motor vehicle."
     On motion of Delegate Boggs, 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. 404), 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: Fleischauer.
     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. 2557) passed.
     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 passed, with amendments, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 2771, Relating to the West Virginia Alcohol and Drug-Free Workplace Act.
     On motion of Delegate Boggs, 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 §21-1D-2 and §21-1D-8 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 §21- 1D-5a and §21-1D-7b, all to read as follows:
ARTICLE 1D. WEST VIRGINIA ALCOHOL AND DRUG-FREE WORKPLACE ACT.
§21-1D-2. Definitions.

     (a) The term 'alcohol test' means a procedure conducted to determine if an individual is under the influence of alcohol.
     (b) The term 'construction', as used in this article, means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract the value of which contract is over $100,000. The term 'construction' does not include temporary or emergency repairs
     (c) The term 'contractor' means any employer working on a public improvement without regard to whether they are serving as the prime or subcontractor to another.
     (d) The term 'drug test' means a procedure using at least a nine-panel drug screen in urine specimens that are collected from individuals for the purpose of scientifically analyzing the specimens to determine if the individual ingested, was injected or otherwise exposed to a drug of abuse.
     (e) The term 'drug of abuse' means any substance listed under subsection (h) of this section and any other substance the employer chooses to test for.
     (f) The term 'employee' means a laborer, mechanic or other worker. For the purposes of this article, employee does not include such those persons as are employed or hired directly by a public authority on a regular or temporary basis engaged exclusively in making temporary or emergency repairs. Furthermore, employee does not include such those persons employed by a contractor who does not work in public improvement construction.
     (g) The term 'medical review officer' means a physician who holds a certificate authorizing them to practice medicine and surgery or osteopathic medicine and surgery, has knowledge of substance abuse disorders, has the appropriate medical training to interpret and evaluate positive drug and alcohol test results together with a person's medical history and other relevant biomedical information, has successfully completed qualification training as outlined in the Code of Federal Regulations at 49 C.F.R. Part 40 §121 (c) and has passed an exam administered by a nationally recognized medical review officer certification board or subspecialty board for medical practitioners in the field of medical review of federally mandated drug testing.
     (h) The term 'nine-panel drug screen' means a drug-testing program that tests for marijuana, cocaine, opiates including hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines, barbiturates, benzodiazepines, methadone and propoxyphene at the substance screening and confirmation limits where provided under federally mandated drug and alcohol testing programs or otherwise accepted as the industry standard.
     (i) The term 'preemployment drug test' means a drug test taken within the preceding twelve months from employment or seven days after hire.
_____
(i) (j) The term 'public authority', as used in this article, means any officer, board or commission or other agency of the State of West Virginia, its counties or municipalities or any political subdivision thereof, authorized by law to enter into a contract for the construction of a public improvement, including any institution supported, in whole or in part, by public funds of the State of West Virginia and this article applies to expenditures of these institutions made, in whole or in part, from public funds.
     (j) (k) The term 'public improvement', as used in this article, includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures upon which construction may be let to contract by the State of West Virginia, its counties or municipalities or any political subdivision thereof.
_____
(k) (l) The term 'random drug testing' means a procedure in which employees who perform safety-sensitive tasks are selected to undergo a drug test by a statistically valid random selection method without prearrangement or planning.
     (l) (m) The term 'reasonable cause' means a belief based on facts and inferences based primarily upon, but not limited to: (1) Observable phenomena, such as direct observation of use, possession or distribution of alcohol or a controlled substance drug of abuse, or of the physical symptoms of being under the influence of alcohol or a controlled substance drug of abuse, such as, but not limited to, slurred speech, dilated pupils, odor of an alcoholic beverage or a controlled substance drug of abuse, changes in affect or dynamic mood swings; (2) a pattern of abnormal conduct, erratic or aberrant behavior or deteriorating work performance such as frequent absenteeism, excessive tardiness or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance drug of abuse and does not appear to be attributable to other factors; (3) the identification of an employee as the focus of a criminal investigation into unauthorized possession, use or trafficking of a controlled substance drug of abuse; (4) a report of use of alcohol or a controlled substance drug of abuse provided by a reliable and credible source; and (5) repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appears to be related to the use of alcohol or a controlled substance drug of abuse and that does not appear attributable to other factors.
     (m) (n) The term 'safety-sensitive duty' means any task or duty fraught with such risks of injury to the employee or others that even a momentary lapse of attention or judgment, or both, can lead to serious bodily harm or death.
     (n) (o) The term 'under the influence of alcohol' means a concentration of eight hundredths of one percent or more by weight of alcohol in an individual's blood or a concentration of eight hundredths of one gram or more by weight of alcohol per two hundred ten liters of an individual's breath.
§21-1D-5a. Drug-free workplace policy not applicable to workers required to follow federal Department of Transportation drug testing guidelines.

  In instances where a worker is required by law to follow United States Department of Transportation drug testing guidelines, no additional drug tests are required under this article.
§21-1D-7b. Contractor to provide certified drug-free workplace report.
  No less than once per year, or upon completion of the project, every contractor shall provide a certified report to the public authority which let the contract. The report shall include:
  (1) Information to show that the education and training service to the requirements of section five of this article was provided;
  (2) The name of the laboratory certified by the United States Department of Health and Human Services or its successor that performs the drug tests pursuant to this article;
  (3) The average number of employees in connection with the construction on the public improvement;
  (4) Drug test results for the following categories including the number of positive tests and the number of negative tests:
  (A) Preemployment and new hires;
  (B) Reasonable suspicion;
  (C) Post-accident;
  (D) Random.
§21-1D-8. Penalties for violation of this article.
  (a) Any contractor who violates any provision of this article is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000; for the third or any subsequent offense within the preceding five years , the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 and the contractor shall be excluded from bidding any additional new public improvement projects for a period of one year.
  (b) Any person who directly or indirectly aids, requests or authorizes any other person to violate any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $250."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2771 - "A Bill to amend and reenact §21-1D-2 and §21-1D-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §21-1D-5a and §21-1D-7b, all relating to West Virginia Alcohol and Drug-Free Workplace Act; defining that a contract under this section shall only include those whose value is over $100,000; defining a pre-employment drug test; defining a pre-employment drug test; requiring the submission of a sworn statement regarding a drug-free workplace; providing that workers who comply with that United States Department of Transportation drug testing guidelines are not required to submit to additional tests; requiring a report to public authority who let the contract; and providing criminal penalties."
  On motion of Delegate Boggs, 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. 405), and there were--yeas 95, nays 5, absent and not voting none, with the nays being as follows:
  Nays: Cowles, Louisos, Michael, J. Miller and Overington.
  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. 2771) passed.
  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 passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2832, Relating to critical skills evaluations for students in grades three and eight.
  On motion of Delegate Boggs, 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 section and inserting in lieu thereof the following:
"ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-10. Critical skills instructional support programs for third and eighth graders.
(a) The Legislature finds that:

  (1) In the early childhood through intermediate grade levels, ensuring that each student masters the content and skills needed for mastery at the next higher grade level is critically important for student success;
  (2) Students who do not demonstrate grade-level mastery in reading, language arts and mathematics become increasingly less likely to succeed at each successively higher grade level;
  (3) State board policy requires every school to establish a student assistance team that reviews student academic needs that have persisted despite being addressed by instruction and intervention and requires schools to implement in an equitable manner programs during and after the instructional day at the appropriate instructional levels that contribute to the success of students; and
  (4) Grades three and eight are critical transition points for additional intervention strategies that reinforce the preparation of students who are not prepared fully for success at the next grade level.
  (b) The state board shall, in accordance with the provisions of article three-b, chapter twenty- nine-a of this code, promulgate legislative rules as necessary to effectuate the provisions of this section on or before November 1, 2009. The rules shall become effective July 1, 2010 and shall provide for at least the following:
  (1) Encouraging and assisting county boards in establishing and operating critical skills instructional support programs during and after the instructional day and during the summer for students in grades three and eight who in the judgment of the student assistance team are not mastering the content and skills in reading, language arts and mathematics adequately for success at the next grade level and who are recommended by the student assistance team for additional academic help through the programs;
  (2) Maximizing parental involvement in supporting the critical skills development of their children in reading, language arts and mathematics through critical skills instructional support programs;
  (3) Ensuring the employment of qualified teachers and support personnel to provide instruction to students enrolled in critical skills instructional support programs;
  (4) Creating a formula or grant-based program for the distribution of funds appropriated specifically for the purposes of this section or otherwise available for the support of in-school, after- school and summer critical skills instructional support programs;
  (5) Providing transportation and healthy foods for students required to attend after-school and summer critical skills instructional support programs, or supervision at the school that accommodates the typical work schedules of parents; and
  (6) Receiving from county boards any applications and annual reports required by rule of the state board.
  (c) Effective July 1, 2010, a student in grades three or eight who is recommended by the student assistance team for additional academic help in one or more of the subjects of reading, language arts and mathematics through a critical skills instructional support program may be required to attend a summer critical skills instructional support program as a condition for promotion if:
  (1) The student has been provided additional academic help through an in-school or after- school critical instructional support program and, prior to the end of the school year, the student assistance team recommends that further additional academic help is needed for the student to be successful at the next grade level; and
  (2) Adequate funding is provided by the State Board for the administration and operation of the program;
  (d) Effective July 1, 2010, county boards shall provide suitable educational facilities, equipment and services to support critical skills instructional support programs established pursuant to this section. Summer programs may be provided at a central location for third and eighth graders who qualify for the program.
  (e) Nothing prohibits the grade level retention of a student based upon the sole judgement of the teacher of the students mastery of the subject matter and preparation for the subject matter at the next higher grade level.
  (f) Nothing in this section may be construed to affect the individualized education plans of exceptional students.
  (g) Beginning July 1, 2009:
  (1) Each county board shall prepare to implement the provisions of this section and the provisions of the state board rule required by subsection (b) of this section. The preparations shall at least include planning, ensuring the student assistance teams are established as currently required by state board policy and performing a needs assessment; and
  (2) With the needs assessment performed by each county board and other necessary information, the state board shall determine an accurate cost for fully implementing the provisions of this section. The state board also shall determine the amount of funds available from sources other than Legislative appropriation.
  (h) County boards are encouraged to establish and operate critical skills instructional support programs during the summer of 2010."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2832 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2E-10, relating to critical skills instructional support programs for students in grades three and eight; setting forth legislative findings; providing for state board rules to effectuate section; establishing minimum provisions of rules; providing condition for promotion for certain students under certain circumstances; requiring suitable facilities by county boards; preserving teacher's judgment on student retention decisions; preserving individualized education plans from effect of section; providing for county board preparation; requiring an accurate determination of cost; requiring a determination of the amount of funds available from other sources; and encouraging establishment of the programs during summer of 2010."
  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
  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 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
  Com. Sub. for H. B. 2836, School Innovation Zones Act.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Wells, Browning and Barnes.
  On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a Committee of Conference of five 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 Shaver, Moye, M. Poling, Sumner 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 recede from its amendments 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
  Com. Sub. for H. B. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Snyder, Minard and Hall.
  On motion of Delegate Boggs, 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 Wooton, Lawrence and Ellem.
  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 passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2968, Requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems.
  On motion of Delegate Boggs, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, after section five-c, by inserting a new section, designated §29-3-16d, to read as follows:
"§29-3-16d. Performance of installation of propane gas systems.
  (a) Notwithstanding any statutory or regulatory provisions to the contrary, any person who installs, fuels, maintains or services any fuel gas system to a one or two family dwelling shall comply with this article and the rules promulgated under this article relating to fuel gas systems.
  (b) This section does not apply to any person who performs this work on a single family dwelling owned or leased, and occupied by that person. The personal exemption provided in this subsection is the same as the personal exemption provided in the Supervision of Fire Protection Work Act, §29-3D-1, et seq."
  On page one, by amending the enacting section to read as follows:
  "That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §29-3-5c and §29-3-16d, all to read as follows" followed by a colon.
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2968 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §29-3-5c and §29-3-16d, all relating to requiring the State Fire Commission to establish safety standards for fuel gas systems; requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems; and requiring the State Fire Commission to establish safety standards for non-owner or occupant installation, maintenance or service of fuel gas systems in one or two family dwellings."
  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 3146, Relating to seniority rights for school service personnel.
  On motion of Delegate Boggs, 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 §18A-4-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §18A-4-8a of said code be amended and reenacted; that §18A-4-8b of said code be amended and reenacted; and that §18A-4-17 of said code be amended and reenacted, all to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8. Employment term and class titles of service personnel; definitions.

  (a) The purpose of this section is to establish an employment term and class titles for service personnel. The employment term for service personnel may not be less than ten months. A month is defined as twenty employment days. Provided, That the county board may contract with all or part of these service personnel for a longer term. The beginning and closing dates of the ten-month employment term may not exceed forty-three weeks.
  (b) Service personnel employed on a yearly or twelve-month basis may be employed by calendar months. Whenever there is a change in job assignment during the school year, the minimum pay scale and any county supplement are applicable apply.
  (c) Service personnel employed in the same classification for more than the two hundred day minimum employment term shall be are paid for additional employment at a daily rate of not less than the daily rate paid for the two hundred day minimum employment term.
  (d) A service person may not be required to report for work more than five days per week without his or her agreement, and no part of any working day may be accumulated by the employer for future work assignments, unless the employee agrees thereto.
  (e) If a service person whose regular work week is scheduled from Monday through Friday agrees to perform any work assignments on a Saturday or Sunday, the service person shall be is paid for at least one-half day of work for each day he or she reports for work. If the service person works more than three and one-half hours on any Saturday or Sunday, he or she shall be paid for at least a full day of work for each day.
  (f) A custodian, aide, maintenance, office and school lunch service person required to work a daily work schedule that is interrupted shall be is paid additional compensation.
  (1) A maintenance person is defined as a person who holds a classification title other than in a custodial, aide, school lunch, office or transportation category as provided in section one, article one of this chapter.
  (2) A service person's schedule is considered to be interrupted if he or she does not work a continuous period in one day. Aides are not regarded as working an interrupted schedule when engaged exclusively in the duties of transporting students;
  (3) The additional compensation provided for in this subsection:
  (A) Is equal to at least one eighth of a service person's total salary as provided by the state minimum pay scale and any county pay supplement; and
  (B) Is payable entirely from county board funds.
  (g) When there is a change in classification or when a service person meets the requirements of an advanced classification, his or her salary shall be made to comply with the requirements of this article and any county salary schedule in excess of the minimum requirements of this article, based upon the service person's advanced classification and allowable years of employment.
  (h) A service person's, contract as provided in section five, article two of this chapter, shall state the appropriate monthly salary the employee is to be paid, based on the class title as provided in this article and on any county salary schedule in excess of the minimum requirements of this article.
  (i) The column heads of the state minimum pay scale and class titles, set forth in section eight-a of this article, are defined as follows:
  (1) 'Pay grade' means the monthly salary applicable to class titles of service personnel;
  (2) 'Years of employment' means the number of years which an employee classified as a service person has been employed by a county board in any position prior to or subsequent to the effective date of this section and includes service in the armed forces of the United States, if the employee was employed at the time of his or her induction. For the purpose of section eight-a of this article, years of employment is limited to the number of years shown and allowed under the state minimum pay scale as set forth in section eight-a of this article;
  (3) 'Class title' means the name of the position or job held by a service person;
  (4) 'Accountant I' means a person employed to maintain payroll records and reports and perform one or more operations relating to a phase of the total payroll;
  (5) 'Accountant II' means a person employed to maintain accounting records and to be responsible for the accounting process associated with billing, budgets, purchasing and related operations;
  (6) 'Accountant III' means a person employed in the county board office to manage and supervise accounts payable, payroll procedures, or both;
  (7) 'Accounts payable supervisor' means a person employed in the county board office who has primary responsibility for the accounts payable function and who either has completed twelve college hours of accounting courses from an accredited institution of higher education or has at least eight years of experience performing progressively difficult accounting tasks. Responsibilities of this class title may include supervision of other personnel;
  (8) 'Aide I' means a person selected and trained for a teacher-aide classification such as monitor aide, clerical aide, classroom aide or general aide;
  (9) 'Aide II' means a service person referred to in the 'Aide I' classification who has completed a training program approved by the State Board, or who holds a high school diploma or has received a general educational development certificate. Only a person classified in an Aide II class title may be employed as an aide in any special education program;
  (10) 'Aide III' means a service person referred to in the 'Aide I' classification who holds a high school diploma or a general educational development certificate; and
  (A) Has completed six semester hours of college credit at an institution of higher education; or
  (B) Is employed as an aide in a special education program and has one year's experience as an aide in special education;
  (11) 'Aide IV' means a service person referred to in the 'Aide I' classification who holds a high school diploma or a general educational development certificate; and
  (A) Has completed eighteen hours of State Board-approved college credit at a regionally accredited institution of higher education, or
  (B) Has completed fifteen hours of State Board-approved college credit at a regionally accredited institution of higher education; and has successfully completed an in-service training program determined by the State Board to be the equivalent of three hours of college credit;
  (12) 'Audiovisual technician' means a person employed to perform minor maintenance on audiovisual equipment, films, and supplies and who fills requests for equipment;
  (13) 'Auditor' means a person employed to examine and verify accounts of individual schools and to assist schools and school personnel in maintaining complete and accurate records of their accounts;
  (14) 'Autism mentor' means a person who works with autistic students and who meets standards and experience to be determined by the State Board. A person who has held or holds an aide title and becomes employed as an autism mentor shall hold a multiclassification status that includes both aide and autism mentor titles, in accordance with section eight-b of this article;
  (15) 'Braille or sign language specialist' means a person employed to provide braille and/or sign language assistance to students. A service person who has held or holds an aide title and becomes employed as a braille or sign language specialist shall hold a multiclassification status that includes both aide and braille or sign language specialist title, in accordance with section eight-b of this article;
  (16) 'Bus operator' means a person employed to operate school buses and other school transportation vehicles as provided by the State Board;
  (17) 'Buyer' means a person employed to review and write specifications, negotiate purchase bids and recommend purchase agreements for materials and services that meet predetermined specifications at the lowest available costs;
  (18) 'Cabinetmaker' means a person employed to construct cabinets, tables, bookcases and other furniture;
  (19) 'Cafeteria manager' means a person employed to direct the operation of a food services program in a school, including assigning duties to employees, approving requisitions for supplies and repairs, keeping inventories, inspecting areas to maintain high standards of sanitation, preparing financial reports and keeping records pertinent to food services of a school;
  (20) 'Carpenter I' means a person classified as a carpenter's helper;
  (21) 'Carpenter II' means a person classified as a journeyman carpenter;
  (22) 'Chief mechanic' means a person employed to be responsible for directing activities which ensure that student transportation or other county board-owned vehicles are properly and safely maintained;
  (23) 'Clerk I' means a person employed to perform clerical tasks;
  (24) 'Clerk II' means a person employed to perform general clerical tasks, prepare reports and tabulations and operate office machines;
  (25) 'Computer operator' means a qualified person employed to operate computers;
  (26) 'Cook I' means a person employed as a cook's helper;
  (27) 'Cook II' means a person employed to interpret menus and to prepare and serve meals in a food service program of a school. This definition includes a service person who has been employed as a 'Cook I' for a period of four years;
  (28) 'Cook III' means a person employed to prepare and serve meals, make reports, prepare requisitions for supplies, order equipment and repairs for a food service program of a school system;
  (29) 'Crew leader' means a person employed to organize the work for a crew of maintenance employees to carry out assigned projects;
  (30) 'Custodian I' means a person employed to keep buildings clean and free of refuse;
  (31) 'Custodian II' means a person employed as a watchman or groundsman;
  (32) 'Custodian III' means a person employed to keep buildings clean and free of refuse, to operate the heating or cooling systems and to make minor repairs;
  (33) 'Custodian IV' means a person employed as a head custodians custodian. In addition to providing services as defined in 'custodian III,' duties may include supervising other custodian personnel;
  (34) 'Director or coordinator of services' means an employee of a county board who is assigned to direct a department or division.
  (A) Nothing in this subdivision prohibits a professional person or a professional educator from holding this class title;
  (B) Professional personnel holding this class title may not be defined or classified as service personnel unless the professional person held a service personnel title under this section prior to holding the class title of 'director or coordinator of services.'
  (C) The director or coordinator of services shall be classified either as a professional person or a service person for state aid formula funding purposes; and
  (D) Funding for the position of director or coordinator of services is based upon the employment status of the director or coordinator either as a professional person or a service person;
  (35) 'Draftsman' means a person employed to plan, design and produce detailed architectural/engineering drawings;
  (36) 'Electrician I' means a person employed as an apprentice electrician helper or one who holds an electrician helper license issued by the state fire marshal;
  (37) 'Electrician II' means a person employed as an electrician journeyman or one who holds a journeyman electrician license issued by the state fire marshal;
  (38) 'Electronic technician I' means a person employed at the apprentice level to repair and maintain electronic equipment;
  (39) 'Electronic technician II' means a person employed at the journeyman level to repair and maintain electronic equipment;
  (40) 'Executive secretary' means a person employed as secretary to the county school superintendent or as a secretary who is assigned to a position characterized by significant administrative duties;
  (41) 'Food services supervisor' means a qualified person who is not a professional person or professional educator as defined in section one, article one of this chapter. The food services supervisor is employed to manage and supervise a county school system's food service program. The duties include preparing in-service training programs for cooks and food service employees, instructing personnel in the areas of quantity cooking with economy and efficiency and keeping aggregate records and reports;
  (42) 'Foreman' means a skilled person employed to supervise personnel who work in the areas of repair and maintenance of school property and equipment;
  (43) 'General maintenance' means a person employed as a helper to skilled maintenance employees and to perform minor repairs to equipment and buildings of a county school system;
  (44) 'Glazier' means a person employed to replace glass or other materials in windows and doors and to do minor carpentry tasks;
  (45) 'Graphic artist' means a person employed to prepare graphic illustrations;
  (46) 'Groundsman' means a person employed to perform duties that relate to the appearance, repair and general care of school grounds in a county school system. Additional assignments may include the operation of a small heating plant and routine cleaning duties in buildings;
  (47) 'Handyman' means a person employed to perform routine manual tasks in any operation of the county school system;
  (48) 'Heating and air conditioning mechanic I' means a person employed at the apprentice level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
  (49) 'Heating and air conditioning mechanic II' means a person employed at the journeyman level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
  (50) 'Heavy equipment operator' means a person employed to operate heavy equipment;
  (51) 'Inventory supervisor' means a person employed to supervise or maintain operations in the receipt, storage, inventory and issuance of materials and supplies;
  (52) 'Key punch operator' means a qualified person employed to operate key punch machines or verifying machines;
  (53) 'Licensed practical nurse' means a nurse, licensed by the West Virginia Board of Examiners for Licensed Practical Nurses, employed to work in a public school under the supervision of a school nurse;
  (54) 'Locksmith' means a person employed to repair and maintain locks and safes;
  (55) 'Lubrication man' means a person employed to lubricate and service gasoline or diesel- powered equipment of a county school system;
  (56) 'Machinist' means a person employed to perform machinist tasks which include the ability to operate a lathe, planer, shaper, threading machine and wheel press. A person holding this class title also should have the ability to work from blueprints and drawings;
  (57) 'Mail clerk' means a person employed to receive, sort, dispatch, deliver or otherwise handle letters, parcels and other mail;
  (58) 'Maintenance clerk' means a person employed to maintain and control a stocking facility to keep adequate tools and supplies on hand for daily withdrawal for all school maintenance crafts;
  (59) 'Mason' means a person employed to perform tasks connected with brick and block laying and carpentry tasks related to these activities;
  (60) 'Mechanic' means a person employed to perform skilled duties independently in the maintenance and repair of automobiles, school buses and other mechanical and mobile equipment to use used in a county school system;
  (61) 'Mechanic assistant' means a person employed as a mechanic apprentice and helper;
  (62) 'Multiclassification' means a person employed to perform tasks that involve the combination of two or more class titles in this section. In these instances the minimum salary scale shall be is the higher pay grade of the class titles involved;
  (63) 'Office equipment repairman I' means a person employed as an office equipment repairman apprentice or helper;
  (64) 'Office equipment repairman II' means a person responsible for servicing and repairing all office machines and equipment. A person holding this class title is responsible for the purchase of parts necessary for the proper operation of a program of continuous maintenance and repair;
  (65) 'Painter' means a person employed to perform duties painting, finishing and decorating wood, metal and concrete surfaces of buildings, other structures, equipment, machinery and furnishings of a county school system;
  (66) 'Paraprofessional' means a person certified pursuant to section two-a, article three of this chapter to perform duties in a support capacity including, but not limited to, facilitating in the instruction and direct or indirect supervision of students under the direction of a principal, a teacher or another designated professional educator.
  (A) A person employed on the effective date of this section in the position of an aide may not be subject to a reduction in force or transferred to create a vacancy for the employment of a paraprofessional;
  (B) A person who has held or holds an aide title and becomes employed as a paraprofessional shall hold holds a multiclassification status that includes both aide and paraprofessional titles in accordance with section eight-b of this article; and
  (C) When a service person who holds an aide title becomes certified as a paraprofessional and is required to perform duties that may not be performed by an aide without paraprofessional certification, he or she shall receive the paraprofessional title pay grade;
  (67) 'Payroll supervisor' means a person employed in the county board office who has primary responsibility for the payroll function and who either has completed twelve college hours of accounting from an accredited institution of higher education or has at least eight years of experience performing progressively difficult accounting tasks. Responsibilities of this class title may include supervision of other personnel;
  (68) 'Plumber I' means a person employed as an apprentice plumber and helper;
  (69) 'Plumber II' means a person employed as a journeyman plumber;
  (70) 'Printing operator' means a person employed to operate duplication equipment, and to cut, collate, staple, bind and shelve materials as required;
  (71) 'Printing supervisor' means a person employed to supervise the operation of a print shop;
  (72) 'Programmer' means a person employed to design and prepare programs for computer operation;
  (73) 'Roofing/sheet metal mechanic' means a person employed to install, repair, fabricate and maintain roofs, gutters, flashing and duct work for heating and ventilation;
  (74) 'Sanitation plant operator' means a person employed to operate and maintain a water or sewage treatment plant to ensure the safety of the plant's effluent for human consumption or environmental protection;
  (75) 'School bus supervisor' means a qualified person employed to assist in selecting school bus operators and routing and scheduling school buses, operate a bus when needed, relay instructions to bus operators, plan emergency routing of buses and promote good relationships with parents, students, bus operators and other employees;
  (76) 'Secretary I' means a person employed to transcribe from notes or mechanical equipment, receive callers, perform clerical tasks, prepare reports and operate office machines;
  (77) 'Secretary II' means a person employed in any elementary, secondary, kindergarten, nursery, special education, vocational or any other school as a secretary. The duties may include performing general clerical tasks; transcribing from notes, stenotype, mechanical equipment or a sound-producing machine; preparing reports; receiving callers and referring them to proper persons; operating office machines; keeping records and handling routine correspondence. Nothing in this subdivision prevents a service person from holding or being elevated to a higher classification;
  (78) 'Secretary III' means a person assigned to the county board office administrators in charge of various instructional, maintenance, transportation, food services, operations and health departments, federal programs or departments with particular responsibilities in purchasing and financial control or any person who has served for eight years in a position which meets the definition of 'secretary II' or 'secretary III';
  (79) 'Supervisor of maintenance' means a skilled person who is not a professional person or professional educator as defined in section one, article one of this chapter. The responsibilities include directing the upkeep of buildings and shops, and issuing instructions to subordinates relating to cleaning, repairs and maintenance of all structures and mechanical and electrical equipment of a county board;
  (80) 'Supervisor of transportation' means a qualified person employed to direct school transportation activities properly and safely, and to supervise the maintenance and repair of vehicles, buses and other mechanical and mobile equipment used by the county school system;
  (81) 'Switchboard operator-receptionist' means a person employed to refer incoming calls, to assume contact with the public, to direct and to give instructions as necessary, to operate switchboard equipment and to provide clerical assistance;
  (82) 'Technology system specialist' means a service person who has expertise in technology fields, who meets the education and certification requirements determined by the state board and who is employed by a county board to support and maintain local area networks, servers, computer workstations and other computer related systems and technologies;
__
(82) (83) 'Truck driver' means a person employed to operate light or heavy duty gasoline and diesel-powered vehicles;
  (83) (84) 'Warehouse clerk' means a person employed to be responsible for receiving, storing, packing and shipping goods;
  (84) (85) 'Watchman' means a person employed to protect school property against damage or theft. Additional assignments may include operation of a small heating plant and routine cleaning duties;
  (85) (86) 'Welder' means a person employed to provide acetylene or electric welding services for a school system; and
  (86) (87) 'WVEIS data entry and administrative clerk' means a person employed to work under the direction of a school principal to assist the school counselor or counselors in the performance of administrative duties, to perform data entry tasks on the West Virginia Education Information System, and to perform other administrative duties assigned by the principal.
  (j) Notwithstanding any provision in this code to the contrary, and in addition to the compensation provided for service personnel in section eight-a of this article, each service person is entitled to all service personnel employee rights, privileges and benefits provided under this or any other chapter of this code without regard to the employee's hours of employment or the methods or sources of compensation.
  (k) A service person whose years of employment exceeds the number of years shown and provided for under the state minimum pay scale set forth in section eight-a of this article may not be paid less than the amount shown for the maximum years of employment shown and provided for in the classification in which he or she is employed.
  (l) Each county board shall review each service person's job classification annually and shall reclassify all service persons as required by the job classifications. The state superintendent may withhold state funds appropriated pursuant to this article for salaries for service personnel who are improperly classified by the county boards. Further, the state superintendent shall order a county board to correct immediately any improper classification matter and, with the assistance of the attorney general, shall take any legal action necessary against any county board to enforce the order.
  (m) Without his or her written consent, a service person may not be:
  (1) Reclassified by class title; or
  (2) Relegated to any condition of employment which would result in a reduction of his or her salary, rate of pay, compensation or benefits earned during the current fiscal year; or for which he or she would qualify by continuing in the same job position and classification held during that fiscal year and subsequent years.
  (n) Any county board failing to comply with the provisions of this article may be compelled to do so by mandamus and is liable to any party prevailing against the board for court costs and the prevailing party's reasonable attorney fee, as determined and established by the court.
  (o) Notwithstanding any provision of this code to the contrary, a service person who holds a continuing contract in a specific job classification and who is physically unable to perform the job's duties as confirmed by a physician chosen by the employee, shall be is given priority status over any employee not holding a continuing contract in filling other service personnel job vacancies if the service person is qualified as provided in section eight-e of this article.
  (p) Any person employed in an aide position on the effective date of this section may not be transferred or subject to a reduction in force for the purpose of creating a vacancy for the employment of a licensed practical nurse.
  (q) Without the written consent of the service person, a county board may not establish the beginning work station for a bus operator or transportation aide at any site other than a county board-owned facility with available parking. The workday of the bus operator or transportation aide commences at the bus at the designated beginning work station and ends when the employee is able to leave the bus at the designated beginning work station, unless he or she agrees otherwise in writing. The application or acceptance of a posted position may not be construed as the written consent referred to in this subsection.
§18A-4-8a. Service personnel minimum monthly salaries.
  (a) The minimum monthly pay for each service employee whose employment is for a period of more than three and one-half hours a day shall be is at least the amounts indicated in the state minimum pay scale pay grade and the minimum monthly pay for each service employee whose employment is for a period of three and one-half hours or less a day shall be is at least one-half the amount indicated in the state minimum pay scale pay grade set forth in this section.
STATE MINIMUM PAY SCALE PAY GRADE
Years
Exp.
PAY GRADE
  A B C D E F G H
0 1,577 1,598 1,639 1,691 1,743 1,805 1,836 1,908
1 1,609 1,630 1,671 1,723 1,775 1,837 1,868 1,940
2 1,641 1,662 1,703 1,755 1,807 1,869 1,900 1,972
3 1,673 1,694 1,735 1,787 1,839 1,901 1,932 2,004
4 1,705 1,726 1,767 1,819 1,871 1,933 1,964 2,037
5 1,737 1,758 1,799 1,851 1,903 1,965 1,996 2,069
6 1,769 1,790 1,832 1,883 1,935 1,997 2,028 2,101
7 1,802 1,822 1,864 1,915 1,967 2,029 2,060 2,133
8 1,834 1,854 1,896 1,947 1,999 2,061 2,092 2,165
9 1,866 1,886 1,928 1,980 2,031 2,093 2,124 2,197
10 1,898 1,919 1,960 2,012 2,063 2,126 2,157 2,229
11 1,930 1,951 1,992 2,044 2,095 2,158 2,189 2,261
12 1,962 1,983 2,024 2,076 2,128 2,190 2,221 2,293
13 1,994 2,015 2,056 2,108 2,160 2,222 2,253 2,325
14 2,026 2,047 2,088 2,140 2,192 2,254 2,285 2,357
15 2,058 2,079 2,120 2,172 2,224 2,286 2,317 2,389
16 2,090 2,111 2,152 2,204 2,256 2,318 2,349 2,422
17 2,122 2,143 2,185 2,236 2,288 2,350 2,381 2,454
18 2,154 2,175 2,217 2,268 2,320 2,382 2,413 2,486
19 2,187 2,207 2,249 2,300 2,352 2,414 2,445 2,518
20 2,219 2,239 2,281 2,333 2,384 2,446 2,477 2,550
21 2,251 2,271 2,313 2,365 2,416 2,478 2,509 2,582
22 2,283 2,304 2,345 2,397 2,448 2,511 2,542 2,614
23 2,315 2,336 2,377 2,429 2,481 2,543 2,574 2,646
24 2,347 2,368 2,409 2,461 2,513 2,575 2,606 2,678
25 2,379 2,400 2,441 2,493 2,545 2,607 2,638 2,710
26 2,411 2,432 2,473 2,525 2,577 2,639 2,670 2,742
27 2,443 2,464 2,505 2,557 2,609 2,671 2,702 2,774
28 2,475 2,496 2,537 2,589 2,641 2,703
2,734 2,807
29 2,507 2,528 2,570 2,621 2,673 2,735 2,766 2,839
30 2,540 2,560 2,602 2,653 2,705 2,767 2,798 2,871
31 2,572 2,592 2,634 2,685 2,737 2,799 2,830 2,903
32 2,604 2,624 2,666 2,718 2,769 2,831 2,862 2,935
33 2,636 2,656 2,698 2,750 2,801 2,863 2,895 2,967
34 2,668 2,689 2,730 2,782 2,833 2,896 2,927 2,999
35 2,700 2,721 2,762 2,814 2,866 2,928 2,959 3,031
36 2,732 2,753 2,794 2,846 2,898 2,960 2,991 3,063
37 2,764 2,785 2,826 2,878 2,930 2,992 3,023 3,095
38 2,796 2,817 2,858 2,910 2,962 3,024 3,055 3,127
39 2,828 2,849 2,890 2,942 2,994 3,056 3,087 3,159
40 2,860 2,881 2,922 2,974 3,026 3,088 3,119 3,192
  (Class Title)     
Pay Grade          

Accountant I D
Accountant IIE
Accountant IIIF
Accounts Payable Supervisor G
Aide I A
Aide II B
Aide III C
Aide IV D
Audiovisual Technician C
Auditor G
Autism Mentor F
Braille or Sign Language Specialist E
Bus OperatorD
Buyer F
Cabinetmaker G
Cafeteria Manager D
Carpenter I E
Carpenter II F
Chief Mechanic G
Clerk I B
Clerk IIC
Computer Operator E
Cook I A
Cook II B
Cook III C
Crew LeaderF
Custodian I A
Custodian II B
Custodian III C
Custodian IV D
Director or Coordinator of Services H
Draftsman D
Electrician I F
Electrician II G
Electronic Technician I F
Electronic Technician II G
Executive Secretary G
Food Services Supervisor G
Foreman G
General Maintenance C
Glazier D
Graphic Artist D
Groundsman B
Handyman B
Heating and Air Conditioning Mechanic I E
Heating and Air Conditioning Mechanic II G
Heavy Equipment Operator E
Inventory Supervisor D
Key Punch Operator B
Licensed Practical Nurse F
Locksmith G
Lubrication Man C
Machinist F
Mail ClerkD
Maintenance Clerk C
Mason G
Mechanic F
Mechanic Assistant E
Office Equipment Repairman I F
Office Equipment Repairman IIG
Painter E
Paraprofessional F
Payroll Supervisor G
Plumber I E
Plumber II G
Printing Operator B
Printing Supervisor D
Programmer H
Roofing/Sheet Metal Mechanic F
Sanitation Plant Operator G
School Bus Supervisor E
Secretary I D
Secretary II E
Secretary III F
Supervisor of Maintenance H
Supervisor of Transportation H
Switchboard Operator-Receptionist D
Technology System Specialist G
Truck Driver D
Warehouse Clerk C
Watchman B
Welder F
WVEIS Data Entry and Administrative Clerk B
  (b) An additional twelve dollars per month shall be is added to the minimum monthly pay of each service employee who holds a high school diploma or its equivalent.
  (c) An additional eleven dollars per month also shall be is added to the minimum monthly pay of each service employee for each of the following:
  (1) A service employee who holds twelve college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (2) A service employee who holds twenty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (3) A service employee who holds thirty-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (4) A service employee who holds forty-eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (5) A service employee who holds sixty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (6) A service employee who holds seventy-two college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (7) A service employee who holds eighty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (8) A service employee who holds ninety-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (9) A service employee who holds one hundred eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (10) A service employee who holds one hundred twenty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
  (d) An additional forty dollars per month also shall be is added to the minimum monthly pay of each service employee for each of the following:
  (1) A service employee who holds an associate's degree;
  (2) A service employee who holds a bachelor's degree;
  (3) A service employee who holds a master's degree;
  (4) A service employee who holds a doctorate degree.
  (e) An additional eleven dollars per month shall be is added to the minimum monthly pay of each service employee for each of the following:
  (1) A service employee who holds a bachelor's degree plus fifteen college hours;
  (2) A service employee who holds a master's degree plus fifteen college hours;
  (3) A service employee who holds a master's degree plus thirty college hours;
  (4) A service employee who holds a master's degree plus forty-five college hours; and
  (5) A service employee who holds a master's degree plus sixty college hours.
  (f) When any part of a school service employee's daily shift of work is performed between the hours of six o'clock p.m. and five o'clock a.m. the following day, the employee shall be is paid no less than an additional ten dollars per month and one half of the pay shall be is paid with local funds.
  (g) Any service employee required to work on any legal school holiday shall be is paid at a rate one and one-half times the employee's usual hourly rate.
  (h) Any Full-time service personnel required to work in excess of their normal working day during any week which contains a school holiday for which they are paid shall be are paid for the additional hours or fraction of the additional hours at a rate of one and one-half times their usual hourly rate and paid entirely from county board funds.
  (i) No service employee may have his or her daily work schedule changed during the school year without the employee's written consent and the employee's required daily work hours may not be changed to prevent the payment of time and one-half wages or the employment of another employee.
  (j) The minimum hourly rate of pay for extra duty assignments as defined in section eight-b of this article shall be is no less than one seventh of the employee's daily total salary for each hour the employee is involved in performing the assignment and paid entirely from local funds. Provided, That An alternative minimum hourly rate of pay for performing extra duty assignments within a particular category of employment may be used if the alternate hourly rate of pay is approved both by the county board and by the affirmative vote of a two-thirds majority of the regular full-time employees within that classification category of employment within that county. Provided, however, That The vote shall be by secret ballot if requested by a service personnel employee within that classification category within that county. The salary for any fraction of an hour the employee is involved in performing the assignment shall be is prorated accordingly. When performing extra duty assignments, employees who are regularly employed on a one-half day salary basis shall receive the same hourly extra duty assignment pay computed as though the employee were employed on a full-day salary basis.
  (k) The minimum pay for any service personnel employees engaged in the removal of asbestos material or related duties required for asbestos removal shall be is their regular total daily rate of pay and may be no less than an additional three dollars per hour or no less than five dollars per hour for service personnel supervising asbestos removal responsibilities for each hour these employees are involved in asbestos related duties. Related duties required for asbestos removal include, but are not limited to, travel, preparation of the work site, removal of asbestos, decontamination of the work site, placing and removal of removing equipment and removal of structures from the site. If any member of an asbestos crew is engaged in asbestos related duties outside of the employee's regular employment county, the daily rate of pay shall be is no less than the minimum amount as established in the employee's regular employment county for asbestos removal and an additional thirty dollars per each day the employee is engaged in asbestos removal and related duties. The additional pay for asbestos removal and related duties shall be is payable entirely from county funds. Before service personnel employees may be used in the removal of asbestos material or related duties, they shall have completed a federal Environmental Protection Act approved training program and be licensed. The employer shall provide all necessary protective equipment and maintain all records required by the Environmental Protection Act.
  (l) For the purpose of qualifying for additional pay as provided in section eight, article five of this chapter, an aide shall be is considered to be exercising the authority of a supervisory aide and control over pupils if the aide is required to supervise, control, direct, monitor, escort or render service to a child or children when not under the direct supervision of certified professional personnel within the classroom, library, hallway, lunchroom, gymnasium, school building, school grounds or wherever supervision is required. For purposes of this section, 'under the direct supervision of certified professional personnel' means that a certified professional personnel person is present, with and accompanying the aide.
§18A-4-8b. Seniority rights for school service personnel.
  (a) A county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight of this article, on the basis of seniority, qualifications and evaluation of past service.
  (b) Qualifications means that the applicant holds a classification title in his or her category of employment as provided in this section and shall be is given first opportunity for promotion and filling vacancies. Other employees then shall be considered and shall qualify by meeting the definition of the job title that relates to the promotion or vacancy, as defined in section eight of this article. that relates to the promotion or vacancy. If requested by the employee, the county board shall show valid cause why a service person with the most seniority is not promoted or employed in the position for which he or she applies. Qualified applicants shall be considered in the following order:
  (1) Regularly employed service personnel who hold a classification title within the classification category of the vacancy;
  (2) Service personnel who have held a classification title within the classification category of the vacancy whose employment has been discontinued in accordance with this section;
  (3) Professional personnel who held temporary service personnel jobs or positions prior to June 9, one thousand nine hundred eighty-two, and who apply only for these temporary jobs or positions Regularly employed service personnel who do not hold a classification title within the classification category of vacancy;
__
(4) Service personnel who have not held a classification title within the classification category of the vacancy and whose employment has been discontinued in accordance with this section;
__
(4) (5) Substitute service personnel who hold a classification title within the classification category of the vacancy; and
  
(6) Substitute service personnel who do not hold a classification title within the classification category of the vacancy; and
__
(5) (7) New service personnel.
  (c) The county board may not prohibit a service person from retaining or continuing his or her employment in any positions or jobs held prior to the effective date of this section and thereafter.
  (d) A promotion is defined as means any change in employment that the service person considers to improve his or her working circumstance within the classification category of employment.
  (1) A promotion includes a transfer to another classification category or place of employment if the position is not filled by an employee who holds a title within that classification category of employment.
  (2) Each class title listed in section eight of this article is considered a separate classification category of employment for service personnel, except for those class titles having Roman numeral designations, which shall be are considered a single classification of employment:
  (A) The cafeteria manager class title is included in the same classification category as cooks;
  (B) The executive secretary class title is included in the same classification category as secretaries;
  (C) Paraprofessional, autism mentor and braille or sign language specialist class titles are included in the same classification category as aides; and
  (D) The mechanic assistant and chief mechanic class titles are included in the same classification category as mechanics.
  (3) The assignment of an aide to a particular position within a school is based on seniority within the aide classification category if the aide is qualified for the position.
__(4) Assignment of a custodian to work shifts in a school or work site is based on seniority within the custodian classification category.

  (e) For purposes of determining seniority under this section an a service person's seniority begins on the date that he or she enters into the assigned duties.
  (f) Extra-duty assignments. -
  (1) For the purpose of this section, 'extra-duty assignments' are defined as irregular jobs that occur assignment' means an irregular job that occurs periodically or occasionally such as, but not limited to, field trips, athletic events, proms, banquets and band festival trips.
  (2) Notwithstanding any other provisions of this chapter to the contrary, decisions affecting service personnel with respect to extra-duty assignments shall be are made in the following manner:
  (A) A service person with the greatest length of service time in a particular category of employment shall be is given priority in accepting extra duty assignments, followed by other fellow employees on a rotating basis according to the length of their service time until all such employees have had an opportunity to perform similar assignments. The cycle then shall be is repeated.
  (B) An alternative procedure for making extra-duty assignments within a particular classification category of employment may be used if the alternative procedure is approved both by the county board and by an affirmative vote of two thirds of the employees within that classification category of employment.
  (g) County boards shall post and date notices of all job vacancies of established existing or newly created positions in conspicuous places for all school service personnel to observe for at least five working days.
  (1) Posting locations shall include any website maintained by or available for the use of the county board.
  (2) Notice of a job vacancy shall include the job description, the period of employment, the amount of pay and any benefits and other information that is helpful to prospective applicants to understand the particulars of the job. Job postings for vacancies made pursuant to this section shall be written so as to ensure that the largest possible pool of qualified applicants may apply. Job postings may not require criteria which are not necessary for the successful performance of the job and may not be written with the intent to favor a specific applicant.
  (3) After the five-day minimum posting period, all vacancies shall be filled within twenty working days from the posting date notice of any job vacancies of established existing or newly created positions.
  (4) The county board shall notify any person who has applied for a job posted pursuant to this section of the status of his or her application as soon as possible after the county board makes a hiring decision regarding the posted position.
  (h) All decisions by county boards concerning reduction in work force of service personnel shall be made on the basis of seniority, as provided in this section.
  (i) The seniority of any a service person shall be is determined on the basis of the length of time the employee has been employed by the county board within a particular job classification. For the purpose of establishing seniority for a preferred recall list as provided in this section, when a service person who has been employed in one or more classifications, the seniority retains the seniority accrued in each previous classification. is retained by the employee.
   (j) If a county board is required to reduce the number of service personnel within a particular job classification, the following conditions apply:
  (1) The employee with the least amount of seniority within that classification or grades of classification shall be is properly released and employed in a different grade of that classification if there is a job vacancy;
  (2) If there is no job vacancy for employment within that classification or grades of classification, the service person shall be is employed in any other job classification which he or she previously held with the county board if there is a vacancy and shall retain retains any seniority accrued in the job classification or grade of classification.
  (k) Prior to August 1, After a reduction in force or transfer is approved, but prior to August 1, (1) If the a county board in its sole and exclusive judgment determines may determine that the reason for any particular reduction in force or transfer no longer exists.
  (1) If the board makes this determination, it shall rescind the reduction in force or transfer and notify the affected employee in writing of the right to be restored to his or her former position of employment.
  (2) Within five days of being notified, The affected employee shall notify the county board of his or her intent to return to the former position of employment within five days of being notified or lose the right of restoration to be restored to the former position. terminates.
  (3) The county board shall may not rescind the reduction in force of an employee until all service personnel with more seniority in the classification category on the preferred recall list have been offered the opportunity for recall to regular employment as provided in this section.
  (4) If there are insufficient vacant positions to permit reemployment of all more senior employees on the preferred recall list within the classification category of the service person who was subject to reduction in force, the position of the released service person shall be posted and filled in accordance with this section.
  (l) If two or more service persons accumulate identical seniority, the priority shall be is determined by a random selection system established by the employees and approved by the county board.
  (m) All service personnel whose seniority with the county board is insufficient to allow their retention by the county board during a reduction in work force shall be are placed upon a preferred recall list and shall be recalled to employment by the county board on the basis of seniority.
  (n) A service person placed upon the preferred recall list shall be recalled to any position openings by the county board within the classification(s) where he or she had previously been employed, or to any lateral position for which the service person is qualified or to a lateral area for which a service person has certification and/or licensure.
  (o) A service person on the preferred recall list shall does not forfeit the right to recall by the county board if compelling reasons require him or her to refuse an offer of reemployment by the county board.
  (p) The county board shall notify all service personnel on the preferred recall list of all position openings that exist from time to time. The notice shall be sent by certified mail to the last known address of the service person. Each service person shall notify the county board of any change of address.
  (q) No position openings may be filled by the county board, whether temporary or permanent, until all service personnel on the preferred recall list have been properly notified of existing vacancies and have been given an opportunity to accept reemployment.
  (r) A service person released from employment for lack of need as provided in sections six and eight-a, article two of this chapter shall be is accorded preferred recall status on July 1 of the succeeding school year if the he or she has not been reemployed as a regular employee.
  (s) A county board failing to comply with the provisions of this article may be compelled to do so by mandamus and is liable to any party prevailing against the board for court costs and the prevailing party's reasonable attorney fee, as determined and established by the court.
  (1) A service person denied promotion or employment in violation of this section shall be awarded the job, pay and any applicable benefits retroactively to the date of the violation and shall be paid entirely from local funds.
  (2) The county board is liable to any party prevailing against the board for any court reporter costs including copies of transcripts.
§18A-4-17. Health and other facility employee salaries.
  (a) The minimum salary scale for professional personnel and service personnel employed by the state department of education to provide education and support services to residents of state department of health and human resources facilities, corrections facilities providing services to juvenile and youthful offenders, and in the West Virginia schools for the deaf and the blind and in public community and technical colleges providing middle college services is the same as set forth in sections two, three and eight-a of this article. Additionally, those personnel shall receive the equivalent of salary supplements paid to professional and service personnel employed by the county board of education in the county wherein each facility is located, as set forth in sections five-a and five-b of this article. Professional personnel and service personnel in these facilities who earn advanced classification of training after the effective date of this section shall be paid the advanced salary from the date the classification of training is earned. The professional personnel shall be certified, licensed or trained, and shall meet other eligibility classifications as may be required by the provisions of this chapter and by state board regulations for comparable instructional personnel who are employed by county boards. of education The professional personnel shall be paid at the equivalent rate of pay of teachers as set forth in section two of this article, but outside the public support plan, plus the equivalent of the salary supplement paid to teachers employed by the county board of education in the county in which each facility is located, as set forth in section five-a of this article.
  (b) Professional personnel employed by the department to provide educational service education services to residents in state department of health and human resources facilities, corrections facilities providing services to juvenile and youthful offenders, or in the West Virginia schools for the deaf and the blind or in public community and technical colleges providing middle college services shall be are afforded all the rights, privileges and benefits established for the professional personnel under this article, subject to the following:
  (1) Provided, That The benefits shall apply only within the facility at which the professional personnel are employed;
  (2) Provided, however, That The benefits shall exclude salaries unless explicitly provided for under this or other sections of this article; and
__
(3) Provided further, That Seniority for the professional personnel shall be is determined on the basis of the length of time that the employee has been professionally employed at the facility, regardless of which state agency was the actual employer.
  (c) Nothing contained in this section shall be construed to mean that Professional personnel and service personnel employed by the department of education to provide educational education and support services to residents in state department of health and human resources facilities, corrections facilities providing services to juvenile and youthful offenders, and the West Virginia schools for the deaf and the blind and in public community and technical colleges providing middle college services are other than state employees.
  (d) Additional seniority provisions.
  (1) Notwithstanding any other provision of this section to the contrary, professional and service personnel employed in an educational facility operated by the West Virginia department of education shall accrue seniority at that facility on the basis of the length of time the employee has been employed at the facility. Any Professional or and service personnel whose employment at the facility was preceded immediately by employment with the county board previously providing education services at the facility or whose employment contract was with the county board previously providing education services at the facility:
  (A) shall retain Retains any seniority accrued during employment by the county board;
  (B) shall accrue Accrues seniority as a regular employee with the county board during employment at the facility;
  (C) shall attain Attains continuing contract status in accordance with section two, article two, chapter eighteen-a of this code with both the county and the facility if the sum of the years employed by the county and the facility equals the statutory number required for continuing contract status; and
  (D) shall retain and continue Retains and continues to accrue county and facility seniority in the event of reemployment by the county as a result of direct transfer from the facility or recall from the preferred list.
  (2) Reductions in work force in the facility or employment by the facility or county board shall be are made in accordance with the provisions of sections seven-a and eight-b article four, chapter eighteen-a of this code: Provided, That of this chapter. Only years of employment within the facility shall be are considered for purposes of reduction in force within the facility.
  (3) The seniority conferred in this section applies retroactively to all affected professional and service personnel, but the rights incidental to the seniority shall commence as of on the effective date of this section.
  (4) Amendments made to this section during the 2009 regular session of the Legislature do not abrogate any rights, privileges or benefits bestowed under previous enactments of this section."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 3146 - "A Bill to amend and reenact §18A-4-8 of the Code of West Virginia, 1931, as amended; to amend and reenact §18A-4-8a of said code; to amend and reenact §18A-4-8b of said code; and to amend and reenact §18A-4-17 of said code, all relating to seniority rights for school service personnel generally; creating a new service personnel definition and assigning a pay grade; revising criteria for consideration of applicants; providing for assignment based on seniority in certain circumstances in certain classifications; specifying certain rights, privileges and benefits of certain professional and service personnel providing middle college services in public community and technical colleges; and making technical changes."
  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
  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 that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  H. B. 3155, Relating to the renewal of the West Virginia Small Business Linked Deposit Program.
  On motion of Delegate Boggs, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page three, section four, line twenty-seven, by striking out the words "supervision and".
  On motion of Delegate Boggs, 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. 406), 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. 3155) passed.
  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
  Com. Sub. for S. B. 256, Providing additional requirements for certain property annexation.
 On motion of Delegate Boggs, 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 Tabb, Doyle and Schadler.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had receded from its position and passed, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 3017, Exempting from the consumers sales and service tax and use tax any sales of donated clothing or clothing accessories.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, without amendment, bills of the House of Delegates as follows:
  Com. Sub. for H. B. 2737, Authorizing the Administrative Director of the Supreme Court of Appeals to hire regional or specialized probation officers,
  H. B. 2841, Extending the time for the city council of Richwood to meet as a levying body,
  Com. Sub. for H. B. 2860, Regulating the sequestration and storage of carbon dioxide,
  Com. Sub. for H. B. 2869, Lengthening the time frame for the filing of post-primary and post general campaign financial statements,
  H. B. 2913, Relating to the Statewide Independent Living Council,
  Com. Sub. for H. B. 2999, Relating to the Streamlined Sales and Use Tax Agreement and the West Virginia consumers sales and service tax and use tax,
  H. B. 3011, Repealing the section of code relating to limitation on political activity of officers or employees in the administration of the Vocational Rehabilitation Program,
  Com. Sub. for H. B. 3063, Relating to hunting, tagging and reporting bear,
  Com. Sub. for H. B. 3240, Giving the Commissioner of Motor Vehicles authority to approve all-terrain vehicle rider safety awareness courses,
  And,
  H. B. 3295, Relating to the West Virginia State Treasurer's Office.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates and the passage, as amended, of
  Com. Sub. for S. B. 243, Relating to issuing general obligation bonds,
  And,
  Com. Sub. for S. B. 575, Relating to gaming operations at historic resort hotel.
Resolutions Introduced

  Delegates Campbell, Barker, Boggs, Border, Canterbury, Carmichael, Eldridge, Evans, Guthrie, Hatfield, Iaquinta, Klempa, Kominar, Mahan, Marshall, Miley, Morgan, Paxton, Perdue, M. Poling, Reynolds, Ross, Spencer, Staggers, Stephens, Talbott, Varner, Webster, Wells and White offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. C. R. 120 - "Requesting the Joint Committee on Government and Finance study reciprocity for small businesses, women-owned businesses and minority-owned businesses who receive preferences in other states for government contracts."
  Whereas, Many West Virginia businesses are small, women and minority-owned businesses that provide a major source of jobs in West Virginia; and
  Whereas, For small, women and minority-owned businesses opportunities and capital funding are significantly more difficult to access; and
  Whereas, States such as Virginia promote access to state contracting opportunities for small, women and minority-owned businesses and ensure fairness in the procurement process; and
  Whereas, Providing small, women and minority-owned businesses equal opportunity for participation in the purchasing policies and procurement process of the state can help improve the functioning of the economy and enhance these small, women and minority-owned businesses; and
   Whereas, Providing reciprocity and opportunities for small, women and minority-owned businesses based in other states where that state offers small, women and minority-owned businesses based in West Virginia the same opportunities can further enhance these businesses; therefore, be it
  Resolved by the Legislature of West Virginia:
  
That the Joint Committee on Government and Finance is hereby requested to study reciprocity for small businesses, women-owned businesses and minority-owned businesses who receive preferences in other states for government contracts; and, be it
  Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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 Blair, Anderson, Andes, Armstead, Ashley, Azinger, Barker, Border, Cann, Canterbury, Carmichael, Cowles, Duke, Eldridge, Ellem, Evans, Frazier, Givens, Hall, Hamilton, Hartman, Ireland, Lane, Louisos, Martin, McGeehan, Michael, C. Miller, J. Miller, Moye, Overington, Perdue, Perry, Porter, Romine, Ross, Rowan, Schoen, Shaver, Shott, Skaff, Smith, Sobonya, Stowers, Sumner, Walker, Walters and Williams offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. C. R. 121 - "Expressing the will of the Legislature urging Governor Manchin or the Legislature to extend the regular session, or in the alternative, schedule an extraordinary session for the purpose of immediate consideration of House Joint Resolution 5 and House Joint Resolution 24, both introduced during the 2009 Regular Session."
  Whereas, Thirty states currently have constitutional language defining marriage; and
  Whereas, Some state courts, most notably Connecticut, Massachusetts and California, and most recently Iowa, have ruled that those states must permit same-sex marriages; and
  Whereas, In states where court rulings have allowed same-sex marriage and those state constitutions were subsequently amended to define marriage, same-sex marriage allowed during the interim period are now being litigated to determine their validity; and
  Whereas, The West Virginia House of Delegates Committee on Constitutional Revision has failed to consider House Joint Resolution 5 or House Joint Resolution 24 during the 2009 Regular Session, which both propose a constitutional amendment defining marriage as between one man and one woman and has failed to address the same issue brought before it in previous legislative sessions; and
  Whereas, Submitting a proposed constitutional amendment defining marriage to the people of West Virginia would afford voters the opportunity to ratify or reject such amendment and let their voices be heard on this issue; therefore, be it
  Resolved by the Legislature of West Virginia:
  That Governor Manchin or the Legislature extend the 2009 regular legislative session, or in the alternative, schedule an extraordinary session for the purpose of immediate consideration of House Joint Resolution 5 and House Joint Resolution 24, or other similar resolution which would propose a constitutional amendment defining marriage in West Virginia; and, be it
  Further Resolved, That the Legislature urges the adoption of House Joint Resolution 5 or House Resolution 24, or other similar resolution which would propose a constitutional amendment defining marriage in West Virginia; and, be it
  Further Resolved, That following adoption of a joint resolution defining marriage in West Virginia that such amendment be submitted to the voters of West Virginia for ratification or rejection as required by Article XIV, Section 2 of the West Virginia Constitution.
  Delegates Ellem, Lane and Webster offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. C. R. 122 - "Requesting that the Joint Committee on Judiciary conduct an interim study to review any inconsistencies as contained in the various laws within the West Virginia Code, as well as any applicable agency rules, all pertaining to sex offender registration."
  Whereas, The various sex offender laws and applicable agency rules within the State of West Virginia further facilitate many important societal goals, including providing safety within the various communities of the State of West Virginia; and
  Whereas, The achievement of those goals can only be had with the registration of those sex offenders for an appropriate period of time in relation to the potential threat those offenders may pose towards our more vulnerable citizens in the future; and
  Whereas, Those laws and rules regarding the registration of sex offenders should be reviewed periodically in the interests of justice for the citizens of West Virginia; therefore, be it
  Resolved by the Legislature of West Virginia:
  
That the Joint Committee on Judiciary conduct a study to review any inconsistencies as contained in the various laws within the West Virginia Code, as well as any applicable agency rules, all pertaining to sex offender registration; and, be it
  Further Resolved, That the Joint Committee on the Judiciary report to the regular session of the Legislature 2010, 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 Judiciary.
Special Calendar

Unfinished Business

  The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:
  H. C. R. 95, Requesting a study of the higher education merit screening advisory committee,
  H. C. R. 96, Requesting a study on regulating captive cervid farming as an agricultural business in West Virginia,
  H. C. R. 97, Requesting a study of a special lifetime senior hunting, fishing and trapping license,
  H. C. R. 102, Requesting a study on the terms of lender credit card agreements between financial institutions and lender credit card borrowers,
  H. C. R. 103, Requesting a study relating to alternative programs and cost-effective programs to keep children in schools,
  H. C. R. 104, Requesting that the Joint Committee on Government and Finance authorize a study relating to whether a dependent child of an insurance policyholder should have the same insurance coverage for contraceptive health services as the policyholder,
  H. C. R. 105, Requesting the Joint Committee on Government and Finance to study mandatory coverage by health insurers all expenses associated with pregnancy and childbirth,
  H. C. R. 106, Conducting an interim study to compare the benefits and burdens upon all applicable parties regarding the creation and implementation by all state colleges, universities, and community colleges by providing paid childbirth leave,
  H. C. R. 107, Requesting the Joint Committee on Government and Finance to conduct a study of the feasibility of enacting a more comprehensive expungement statute,
  H. C. R. 108, Requesting the Joint Committee on Government and Finance study the requirement that all state boards, commissions, committees or councils to be gender balanced and to have proportionate representation of minorities,
  H. C. R. 109, Requesting the Joint Committee on Government and Finance to study the advisability of enacting legislation to modernize the unemployment insurance program,
  H. C. R. 110, Requesting that the Joint Committee on Government and Finance authorize a study relating to requiring blasting contractors to notify the State Fire Marshall and local property owners,
  And,
  H. C. R. 111, Naming the bridge known as the Dunbar Toll Bridge on County Route 25/47, 0.1 mile north of the junction of U.S. Route 60 and crossing U.S. Route 60, the "John H.
Reed, Jr. Memorial Bridge".
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegates Andes, Ashley, Lane, C. Miller, J. Miller, Rowan, and Schoen asked to be recorded in the Journal as having voted "Nay" on the adoption of H. C. R. 104, Requesting that the Joint Committee on Government and Finance authorize a study relating to whether a dependent child of an insurance policyholder should have the same insurance coverage for contraceptive health services as the policyholder.
Third Reading

  Com. Sub. for S. B. 279, Relating to industrial accidents and emergency response regulations; 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. 407), 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 (Com. Sub. for S. B. 279) passed.
  On motion of Delegate Webster, the title of the bill was amended to read as follows:
  Com. Sub. for S. B. 279- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-5B-3a, relating generally to industrial and railroad accidents and emergencies; providing definitions; requiring the reporting of certain industrial emergencies to the Mine and Industrial Accident Emergency Operations Center or local emergency telephone system operators; requiring industrial facilities to provide certain information to state and local emergency responders; requiring operators of railroad facilities in this state to provide certain information to state and local emergency responders in the event of a railroad accident or emergency; granting state and local officials access to the person or persons charged with managing an industrial or railroad emergency and certain areas affected by the emergency; requiring state and local officials to timely provide information related to public health, safety and welfare regarding hazardous waste releases and other emergency events; authorizing the Director of the Division of Homeland Security and Emergency Management to promulgate emergency legislative rules establishing a list of facilities subject to the requirements of this section and establishing procedures; providing for civil penalties; requiring the collected moneys to be deposited into the Hazardous Waste Emergency Response Fund; and authorizing the promulgation of legislative rules."
  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. 297, Creating Alternative and Renewable Energy Portfolio Act; on third reading, coming up in regular order, was read a third time
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 408), and there were--yeas 72, nays 28, absent and not voting none, with the nays being as follows:
  Nays: Andes, Armstead, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Hamilton, Ireland, Lane, McGeehan, C. Miller, J. Miller, Moye, Overington, Porter, Rodighiero, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner, Walker and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 297) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 297 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §24-2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24- 2F-6, §24-2F-7, §24-2F-8, §24-2F-9, §24-2F-10, §24-2F-11 and §24-2F-12, all relating to an alternative and renewable energy portfolio standard; setting forth legislative findings; defining terms; establishing standards for the sale of electricity generated from alternative and renewable energy resources; providing for compliance assessments; creating a system of tradeable alternative and renewable energy resource credits; providing for the awarding of credits based upon electricity generated from alternative and renewable energy resource facilities; providing for the awarding of credits for certain greenhouse emissions reduction and offset projects; providing for the awarding of credits for certain energy efficiency and demand-side energy initiative projects; requiring application to the Public Service Commission for approval of alternative and renewable energy portfolio standard compliance plans; setting forth minimum requirements for compliance plan applications; requiring Public Service Commission approval of compliance plan applications; requiring annual progress reports; providing for incentive rate making for investments in new alternative and renewable energy resource facilities in West Virginia; requiring the Public Service Commission to adopt certain net metering and interconnection rules and standards; authorizing the Public Service Commission to enter into interagency agreements to meet its requirements under this article; requiring an ongoing assessment of alternative and renewable energy resources in West Virginia; authorizing Public Service Commission to adopt portfolio standards for certain electric cooperatives and other electric facilities or utilities; establishing the Alternative and Renewable Energy Resources Research Fund; providing for the awarding of matching grants for certain research projects; and authorizing the Public Service Commission to promulgate rules."
  Delegate Boggs moved that the bill take effect July 1, 2009.
  On this question, the yeas and nays were taken (Roll No. 409), and there were--yeas 88, nays 12, absent and not voting none, with the nays being as follows:
  Nays: Andes, Azinger, Duke, Lane, McGeehan, C. Miller, Overington, Porter, Schoen, Shott, Sobonya and Sumner.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 297) takes effect July 1, 2009.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Ross asked and obtained unanimous consent that the remarks of Delegate Canterbury regarding the passage of Com. Sub. for S. B. 297 be printed in the Appendix to the Journal.
  Com. Sub. for S. B. 373, Relating to PROMISE Scholarship; on third reading, coming up in regular order, was read a third time.
  Delegate Ashley requested to be excused from voting on the passage of Com. Sub. for S. B. 373 under the provisions of House Rule 49, stating that his son was the recipient of a PROMISE scholarship.
  The Speaker replied that Delegate Ashley was a member of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Gentleman from voting.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 410), and there were--yeas 86, nays 14, absent and not voting none, with the nays being as follows:
  Nays: Andes, Armstead, Blair, Carmichael, Cowles, Lane, McGeehan, J. Miller, Perdue, Porter, Schoen, Sobonya, Sumner and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 373) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 373 - "A Bill to repeal §18C-7-8 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §18B-1D-9; to amend and reenact §18B-2A-1 of said code; to amend and reenact §18C-1-1 and §18C-1-5 of said code; and to amend and reenact §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6, §18C-7-7 and §18C-7-8 of said code, all relating to higher education in West Virginia generally; requiring training and development opportunities for members of the Higher Education Policy Commission, the Council for Community and Technical College Education and the institutional governing boards; revising criteria for membership of the institutional governing boards and the manner in which the membership is determined; requiring the governor to consider certain factors and seek a certain balance when appointing members; reconstituting the Higher Education Student Financial Aid Advisory Board; providing for member appointments; setting forth member qualifications and terms of office; setting forth duties of the advisory board; changing conditions upon which students who attended high school outside the state may be eligible for financial aid; establishing tuition rate for all West Virginia University graduate students; dissolving the PROMISE Scholarship Board and transferring its powers and duties to the Higher Education Policy Commission and under the administration of the Vice Chancellor for Administration; requiring the vice chancellor to submit an annual report; defining terms; authorizing investment of certain funds with the West Virginia Investment Management Board; increasing by two percent the aggregate percentage amount the Legislature intends to allocate to PROMISE scholarship program for a certain fiscal year; setting a minimum amount for the PROMISE scholarship annual award and authorizing the Higher Education Policy Commission to provide annual awards greater than the minimum under certain circumstances if funds are available; increasing flexibility for adjusting requirements to receive a PROMISE scholarship; providing conditions under which PROMISE scholarship annual awards are continued to certain students under certain circumstances; establishing citizenship and immigrant conditions of eligibility for a PROMISE scholarship; clarifying that a PROMISE scholarship may supplement certain tuition and fee waivers; and authorizing the Higher Education Policy Commission to promulgate rules."
  Delegate Boggs moved that the bill take effect July 1, 2009.
  On this question, the yeas and nays were taken (Roll No. 411), and there were--yeas 95, nays 5, absent and not voting none, with the nays being as follows:
  Nays: McGeehan, Porter, Schoen, Sobonya and Sumner.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 373) takes effect July 1, 2009.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Hutchins announced that he was absent when the votes were taken on Roll Nos. 401 through 403, and that had he been present, he would have voted "Yea" thereon.
  Com. Sub. for S. B. 498, Relating to early childhood education; on third reading, coming up in regular order, was read a third time.
  At 11:51 a.m., on motion of Delegate Boggs, the House of Delegates recessed until 12:30 p.m., and reconvened at that time.
  Delegate Boggs asked and obtained unanimous consent that, for the remainder of the session, members of Conference Committee be permitted to vote on any question or issue before the House which they may have missed as a direct result of their duties on Conference Committees, provided that such members notify the Clerk of the House in writing as to how they wished to vote and on the day the votes were missed, and that any such vote not change the outcome on any question.
  Com. Sub. for S. B. 498, Relating to early childhood education; having been read a third time in earlier proceedings, was, at the request of Delegate Boggs, taken up for further consideration.
  Delegates Armstead and Lane requested to be excused from voting on the passage of Com. Sub. for S. B. 498 under the provisions of House Rule 49.
  The Speaker replied that the Gentlemen were members of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the members from voting.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 412), and there were--yeas 91, nays 6, absent and not voting 3, with the nays and absent and not voting being as follows:
  Nays: Andes, Lane, J. Miller, Porter, Schoen and Walters.
  Absent And Not Voting: Cann, Hall and Mahan.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 498) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 498 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §49-2E-1, §49-2E-2, §49-2E-3 and §49-2E-4, all relating to quality rating and improvement system applicable to certain child care providers; findings and intent; Secretary of Department of Health and Human Resources rules; quality rating and improvement system advisory council; statewide quality rating system rules; statewide implementation; system components; review, reduction, suspension or disqualification; statewide quality improvement system; financial plan for implementation and quality improvement; plan components; pilot projects; third party evaluator; reports to Legislature; gradual implementation; conditioning requirements on legislative appropriation; prioritization of components for funding; and PIECES advisory council."
  Delegate Boggs moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 413), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
  Nays: Porter and Schoen.
  Absent And Not Voting: Cann, Hall and Mahan.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 498) 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.
  Delegate Hall announced that he was absent when the votes were taken on Roll Nos. 412 and 413, and that had he been present, he would have voted "Yea" thereon.
  Com. Sub. for S. B. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems; 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. 414), and there were--yeas 88, nays 12, absent and not voting none, with the nays being as follows:
  Nays: Andes, Armstead, Azinger, Blair, Border, Cowles, Lane, C. Miller, J. Miller, Overington, Porter and Walters.
  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.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 414 - "A Bill to repeal §5-16-7b of the Code of West Virginia, 1931, as amended; to repeal §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17 of said code; to amend and reenact §5F-2-2 of said code; to amend and reenact §16-29H-1, §16-29H-2, §16-29H-3, §16-29H-4 and §16-29H-5 of said code; and to amend said code by adding thereto five new sections, designated §16-29H-6, §16-29H-7, §16- 29H-8, §16-29H-9, and §16-29H-10, all relating generally to the creation of the Governor's Office of Health Enhancement and Lifestyle Planning; setting forth legislative findings; setting forth the powers and duties of the office; transferring the powers and duties of the Pharmaceutical Cost Management Council to the office; creating the position of director; setting forth the qualifications of the director; setting forth the powers and duties of the director; providing for staff; requiring the development of a five-year strategic plan; providing for legislative rule-making authority; providing for coordination with various state agencies, departments, boards, bureaus and commissions; requiring reporting to the Governor and the Legislature; establishing pilot projects for patient- centered medical homes; setting forth legislative findings; defining terms; evaluating existing medical home pilot programs; establishing criteria for pilot projects for patient-centered medical homes; defining four types of pilot projects; setting forth evaluation criteria; granting rule-making authority and exempting from Purchasing division requirements."
  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. 461, Extending selenium effluent limits compliance time; 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. 415), and there were--yeas 90, nays 10, absent and not voting none, with the nays being as follows:
  Nays: Brown, Doyle, Fleischauer, Guthrie, Hatfield, Manchin, Manypenny, Perdue, Webster and Wells.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 461) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Manypenny asked and obtained unanimous consent that the remarks of Delegate Fleischauer regarding Com. Sub. for S. B. 461 be printed in the Appendix to the Journal.
  Delegate Overington then asked and obtained unanimous consent that the remarks of Delegate Ireland regarding Com. Sub. for S. B. 461 also be printed in the Appendix to the Journal.
Messages from the Senate

  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had refused to concur in the amendments of the House of Delegates and requested the House to recede from its amendments to
  S. B. 767, Relating to certain Medicaid program contracts.
  On motion of Delegate Boggs, 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 Morgan, Perdue and C. Miller.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

-Continued-

  Com. Sub. for S. B. 537, Relating to workers' compensation; on third reading, coming up in regular order, was read a third time.
  Delegates Ashley, Hamilton, Lane, Walters and Schoen requested to be excused from voting on the passage of Com. Sub. for S. B. 537 under the provisions of House Rule 49.
  The Speaker replied that the Delegates were members of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Members from voting.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 416), and there were--yeas 85, nays 15, absent and not voting none, with the nays being as follows:
  Nays: Andes, Armstead, Blair, Border, Carmichael, Cowles, Craig, Ireland, Lane, Michael, C. Miller, J. Miller, Overington, Sobonya and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 537) 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. 537 - "A Bill to repeal §23-5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §23-2-1d of said code; to amend and reenact §23- 2A-1 of said code; to amend and reenact §23-2C-8, §23-2C-15, §23-2C-17 and §23-2C-21 of said code; to amend and reenact §23-4-1c, §23-4-6b, §23-4-8, §23-4-8c and §23-4-15b of said code; to amend said code by adding thereto a new section, designated §23-4-8d; to amend and reenact §23-5- 1, §23-5-3 and §23-5-16 of said code; and to amend and reenact §33-2-22 of said code, all relating to workers' compensation; eliminating obsolete sunset provisions; redefining the responsibility of prime contractors to injured employees of their subcontractors; clarifying subrogation rights with respect to employees injured by third parties; authorizing negotiation of amount to accept as subrogation in old fund claims; deleting mandatory recovery fee to insurance commissioner in certain subrogation claims; providing for a unitary decision-making process in claims involving the Uninsured Employer Fund; changing date on which governmental bodies may purchase workers' compensation insurance in the private market and on which the employers' mutual insurance company may non-renew such bodies; awarding attorney fees and costs if workers' compensation temporary disability benefits claim is unreasonably denied; extending the scope of permissible remedies to include those in the general insurance code; permitting the recovery of administrative costs in certain actions; authorizing expedited review by the Office of Judges when a request to reopen temporary total benefits is denied; eliminating mandatory allocation in hearing loss claims; providing that claims for medical benefits in occupational pneumoconiosis claims may be made at any time; clarifying that a sixty-day period applies to various protests; extending the jurisdiction of the Office of Judges to hear certain protests; clarifying permissible method of delivering payment of benefits; establishing reimbursement for certain claimant travel expenses; authorizing award of attorney fees in certain final settlements; clarifying licensing requirements for third-party administrators; mandating conditional payments in certain instances; authorizing the Insurance Commissioner to compromise and settle claims for moneys due the Old Fund and Uninsured Employer Fund; and requiring report to Legislature regarding settlements."
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2009, a bill of the House of Delegates as follows:
  H. B. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
  On motion of Delegate Boggs, 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 §30-3-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §55-7-26, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-7. Powers and duties of West Virginia Board of Medicine.
  (a) The board is autonomous and, in accordance with the provisions of this article, shall administer and supervise examinations and determine qualifications of applicants for licenses to practice medicine and surgery, and to practice podiatry, and to practice as a physician assistant for a physician licensed under this article, and shall issue licenses to qualified applicants and shall regulate the professional conduct and discipline of such individuals. In carrying out its functions, the board may:
  (1) Adopt such regulations rules as are necessary to carry out the purposes of this article;
  (2) Hold hearings and conduct investigations, subpoena witnesses and documents and administer oaths;
  (3) Institute proceedings in the courts of this state to enforce its subpoenas for the production of witnesses and documents and its orders and to restrain and enjoin violations of this article and of any regulations rules promulgated under it;
  (4) Employ investigators, attorneys, hearing examiners, consultants and such other employees as may be necessary, who shall be exempt from the classified service of the Division of Personnel and who shall serve at the will and pleasure of the board. In addition, all personnel employed through the Department of Health and Human Resources on June 30, 2009, to provide services for the board are hereby transferred to the board effective July 1, 2009. However, the employment, salary, benefits or position classification of any person transferred under this section may not be reduced or diminished by reason of this section. All persons transferred shall retain their coverage under the classified service of the Division of Personnel and all matters relating to job classification, job tenure and conditions of employment shall remain in force and effect from and after the date of this section, to the same extent as if this section had not been reenacted. Also, nothing herein shall prohibit the disciplining or dismissal of any employee for cause.
  (5) Enter into contracts and receive and disburse funds according to law;
  (6) Establish and certify standards for the supervision and certification of physician assistants;
  (7) Authorize medical and podiatry corporations in accordance with the provisions and subject to the limitations of section fifteen of this article to practice medicine and surgery or podiatry through duly licensed physicians or podiatrists; and
__
(8) Establish a fee, not to exceed $50, for a reciprocal endorsement; and
  
(9) (8) Perform such other duties as are set forth in this article or otherwise provided for in this code.
  (b) The board shall submit an annual report of its activities to the Legislature. The report shall include a statistical analysis of complaints received, charges investigated, charges dismissed after investigation, the grounds for each such dismissal and disciplinary proceedings and disposition.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-26. Limiting liability of physicians who render services to youth camps and programs.
  (a) Any person licensed to practice medicine and surgery pursuant to the provisions of article three, chapter thirty of this code, or any person licensed to practice medicine and surgery as an osteopathic physician and surgeon pursuant to the provisions of article fourteen, chapter thirty of this code or any medical student, graduate medical student or nurse pursuant to the provisions of article seven, chapter thirty of this code and article seven-a of said chapter performing medical services under the direction of a medical or osteopathic physician licensed to practice in this state: (1) Who is acting in the capacity of a volunteer health care provider at any youth camp or program; and (2) who gratuitously and in good faith prior to the commencement of the youth camp or program agrees to render emergency care or treatment to a participant during the youth camp or program, without objection of the camp or program participant, shall not be held liable for any civil damages as a result of the care or treatment, or as a result of any act or failure to act in providing or arranging further medical treatment.
  (b) The limitation of liability established by this section does not apply to acts or omissions constituting gross negligence or willful and wanton conduct.     
  (c) For purposes of this section, the provision of lodging, meals and articles of clothing by a youth camp or program may not be considered as financial remuneration."
  And by amending the title of the bill to read as follows:
  H. B. 2801 - "A Bill to amend and reenact §30-3-7 of the Code of West Virginia, 1931, as amended; and to further amend said code by adding thereto a new section, designated §55-7-26, all relating to updating language and making technical changes clarifying that the Board of Medicine is an autonomous board which may hire its employees at the board's will and pleasure, and providing for continuation of employment and coverage under the classified service of the Division of Personnel for current employees; and relating to the liability of physicians, osteopathic physicians, nurses, medical students and graduate medical students who render services as volunteer health care providers at youth camps and programs; limiting liability; and providing exceptions."
  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading

-Continued-

  Com. Sub. for S. B. 246
, Relating to unemployment compensation generally; on third reading, coming up in regular order, with amendments pending, was reported by the Clerk.
  An amendment, recommended by the Committee on Finance, was reported by the Clerk, on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
  "That §21A-1-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A-1A-28 of said code be amended and reenacted; that §21A-6-1, §21A-6-3 and §21A-6-10 of said code be amended and reenacted; and that §23-2C-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.

ARTICLE 1. UNEMPLOYMENT COMPENSATION.

§21A-1-4. Workforce West Virginia created; divisions within Workforce West Virginia created; certain terms defined; employer violator system.

 (a) There is continued an agency designated Workforce West Virginia, composed of:
 (1) Division of Unemployment Compensation;
 (2) Division of Employment Service;
 (3) Division of Workforce Development;
 (4) Division of Research, Information and Analysis; and
 (5) Any other divisions or units that the executive director determines are necessary.
 (b) Wherever within this chapter the term 'department', 'bureau' or 'fund' is used, it shall be taken to mean Workforce West Virginia unless otherwise indicated. Any reference in this code to the Bureau of Employment Programs means Workforce West Virginia. Any reference in this code to the Commissioner of the Bureau of Employment Programs or Employment Security means the Executive Director of Workforce West Virginia.
 (c) Workforce West Virginia shall be administered pursuant to subsection (b), section one, article two, chapter five-f of this code.
 (d) The Executive Director of Workforce West Virginia shall establish an employer violator system to identify individuals and employers who are in default on any assessment, surcharge, tax or penalty owed to the fund. The employer violator system shall prohibit violators who own, control or have a ten percent or more ownership interest, or other ownership interest as may be defined by the executive director, in any company from obtaining or maintaining any license, certificate or permit issued by the state until the violator has paid all moneys owed to the fund or has entered into and remains in compliance with a repayment agreement. The employer violator system shall work cooperatively with all state agencies to maintain an accurate, up-to-date list of violators which shall be available in electronic format and online for agencies and the public. Before an employer is added to the violator list, he or she shall be given notice and an opportunity for an expedited administrative hearing. The executive director shall propose for promulgation emergency and legislative rules to effectuate this subsection.
ARTICLE 1A. DEFINITIONS.
§21A-1A-5. Base period; alternative base period.
 
(a) 'Base period' means the first four out of the last five completed calendar quarters immediately preceding the first day of the individual's benefit year.
 (b) 'Alternative base period' means the last four completed calendar quarters immediately preceding the first day of the individual's benefit year.
§21A-1A-6. Base period employer; alternative base period employer.
 'Base period employer' and 'alternative base period employer' mean any employer who in the base period or alternative base period for any benefit year paid wages to an individual who filed claim for unemployment compensation within such benefit year.
§21A-1A-7. Base period wages; alternative base period wages.
 'Base period wages' and 'alternative base period wages' mean wages paid to an individual during the base period or alternative base period by all the individual's base period or alternative base period employers.
§21A-1A-28. Wages; average annual wage; threshold wage.
 (a) 'Wages' means all remuneration for personal service, including commissions, gratuities customarily received by an individual in the course of employment from persons other than the employing unit, as long as such gratuities equal or exceed an amount of not less than $20 each month and which are required to be reported to the employer by the employee, bonuses and the cash value of all remuneration in any medium other than cash except for agricultural labor and domestic service. The term 'wages' includes remuneration for service rendered to the state as a member of the state National Guard or Air National Guard only when serving on a temporary basis pursuant to a call made by the Governor under sections one and two, article one-d, chapter fifteen of this code.
 (b) The term 'wages' does not include:
 (1) That part of the remuneration which, after remuneration equal to $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage is paid during a calendar year to an individual by an employer or his or her predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the purposes of this section, the term 'employment' includes service constituting employment under any unemployment compensation law of another state; or which as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act is required to be covered under this chapter; and, except that for the purposes of sections one, ten, eleven and thirteen, article six of this chapter, all remuneration earned by an individual in employment shall be credited to the individual and included in his or her computation of base period wages: Provided, That the remuneration paid to an individual by an employer with respect to employment in another state or other states upon which contributions were required of and paid by such employer under an unemployment compensation law of such other state or states shall be included as a part of the remuneration equal to the amounts of $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage herein referred to. In applying such limitation on the amount of remuneration that is taxable, an employer shall be accorded the benefit of all or any portion of such amount which may have been paid by its predecessor or predecessors: Provided, however, That if the definition of the term 'wages' as contained in Section 3306(b) of the Internal Revenue Code of 1954, as amended, is amended to include remuneration in excess of $8,000 or, after the amendment and reenactment of this section during the 2009 legislative session, the threshold wage paid to an individual by an employer under the federal Unemployment Tax Act during any calendar year, wages for the purposes of this definition shall include remuneration paid in a calendar year to an individual by an employer subject to this chapter or his or her predecessor with respect to employment during any calendar year up to an amount equal to the amount of remuneration taxable under the federal Unemployment Tax Act;
 (2) The amount of any payment made (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) to, or on behalf of, an individual in its employ or any of his or her dependents, under a plan or system established by an employer which makes provision for individuals in its employ generally (or for such individuals and their dependents), or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of: (A) Retirement; or (B) sickness or accident disability payments made to an employee under an approved state workers' compensation law; or (C) medical or hospitalization expenses in connection with sickness or accident disability; or (D) death;
 (3) Any payment made by an employer to an individual in its employ (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) on account of retirement;
 (4) Any payment made by an employer on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability to, or on behalf of, an individual in its employ after the expiration of six calendar months following the last calendar month in which such individual worked for such employer;
 (5) Any payment made by an employer to, or on behalf of, an individual in its employ or his or her beneficiary: (A) From or to a trust described in Section 401(a) which is exempt from tax under Section 501(a) of the federal Internal Revenue Code at the time of such payments unless such payment is made to such individual as an employee of the trust as remuneration for services rendered by such individual and not as a beneficiary of the trust; or (B) under or to an annuity plan which, at the time of such payment, is a plan described in Section 403(a) of the federal Internal Revenue Code;
 (6) The payment by an employer of the tax imposed upon an employer under Section 3101 of the federal Internal Revenue Code with respect to remuneration paid to an employee for domestic service in a private home or the employer of agricultural labor;
 (7) Remuneration paid by an employer in any medium other than cash to an individual in its employ for service not in the course of the employer's trade or business;
 (8) Any payment (other than vacation or sick pay) made by an employer to an individual in its employ after the month in which he or she attains the age of sixty-five, if he or she did not work for the employer in the period for which such payment is made;
 (9) Payments, not required under any contract of hire, made to an individual with respect to his or her period of training or service in the armed forces of the United States by an employer by which such individual was formerly employed; and
 (10) Vacation pay, severance pay or savings plans received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed does not include: (A) Employees who are on vacation by reason of the request of the employees or their duly authorized agent, for a vacation at a specific time, and which request by the employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation; or (C) employees who are on vacation by reason of the employer's request where such vacation is in addition to the regular vacation and the employer compensates such employee at a rate equal to or exceeding their regular daily rate of pay during the vacation period.
 (c) The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commissioner, except for remuneration other than cash for services performed in agricultural labor and domestic service.
_(d) 'Average annual wage' means the state's average annual wage which is computed on or before September 30 of the year immediately preceding the rate year and is the total remuneration paid by employers as reported on contribution reports on or before that date with respect to all employment during the four consecutive calendar quarters ending on June 30 of that year divided by the average monthly number of individuals performing services in employment during the same four calendar quarters as reported on the contribution reports.
_
'Threshold wage' means the wage amount the employer pays unemployment taxes on for each person in his or her employ during a calendar year. On and after the effective date of the amendment and reenactment of this chapter by the Legislature in 2009, the threshold wage will be $12,000: Provided, That when the moneys in the unemployment fund reach $220 million on February 15 of any year, the threshold wage thereafter will be reduced to $9,000: Provided however, That each year thereafter the threshold wage shall increase or decrease by the same percentage that the state's average wage increases or decreases.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1. Eligibility qualifications.
 An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:
 (1) He or she has registered for work at and thereafter continues to report at an employment office in accordance with the regulations of the commissioner;
 (2) He or she has made a claim for benefits in accordance with the provisions of article seven of this chapter and has furnished his or her Social Security number, or numbers if he or she has more than one such number;
 (3) He or she is able to work and is available for full-time work for which he or she is fitted by prior training or experience and is doing that which a reasonably prudent person in his or her circumstances would do in seeking work;
 (4) He or she has been totally or partially unemployed during his or her benefit year for a waiting period of one week prior to the week for which he or she claims benefits for total or partial unemployment;
 (5) He or she has within his or her base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her base period or, if he or she is not eligible under his or her base period, has within his or her alternative base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her alternative base period; and
 (6) Beginning the first day of November, one thousand nine hundred ninety-four, he He or she participates in reemployment services, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:
 (a) The individual has completed such services; or
 (b) There is justifiable cause for the claimant's failure to participate in such services.
§21A-6-3. Disqualification for benefits.
 Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:
 (1) For the week in which he or she left his or her most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
 For the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual leaves his or her most recent work with an employer and if he or she in fact, within a fourteen-day calendar period, does return to employment with the last preceding employer with whom he or she was previously employed within the past year prior to his or her return to workday, and which last preceding employer, after having previously employed such individual for thirty working days or more, laid off such individual because of lack of work, which layoff occasioned the payment of benefits under this chapter or could have occasioned the payment of benefits under this chapter had such individual applied for such benefits. It is the intent of this paragraph to cause no disqualification for benefits for such an individual who complies with the foregoing set of requirements and conditions. Further, for the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual was compelled to leave his or her work for his or her own health-related reasons and notifies the employer prior to leaving the job or within two business days after leaving the job or as soon as practicable and presents written certification from a licensed physician within thirty days of leaving the job that his or her work aggravated, worsened or will worsen the individual's health problem.
 (2) For the week in which he or she was discharged from his or her most recent work for misconduct and the six weeks immediately following such week; or for the week in which he or she was discharged from his or her last thirty-day employing unit for misconduct and the six weeks immediately following such week. Such disqualification shall carry a reduction in the maximum benefit amount equal to six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days during his or her benefit year, whether or not such days are consecutive, the maximum benefit amount shall be increased by the amount of the decrease imposed under the disqualification; except that:
 If he or she were discharged from his or her most recent work for one of the following reasons, or if he or she were discharged from his or her last thirty days employing unit for one of the following reasons: Misconduct Gross misconduct consisting of willful destruction of his or her employer's property; assault upon the person of his or her employer or any employee of his or her employer; if such assault is committed at such individual's place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, or being under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, while at work; adulterating or otherwise manipulating a sample or specimen in order to thwart a drug or alcohol test lawfully required of an employee; refusal to submit to random testing for alcohol or illegal controlled substances for employees in safety sensitive positions as defined in section two, article one-d, chapter twenty-one of this code; arson, theft, larceny, fraud or embezzlement in connection with his or her work; or any other gross misconduct; he or she shall be and remain disqualified for benefits until he or she has thereafter worked for at least thirty days in covered employment: Provided, That for the purpose of this subdivision the words 'any other gross misconduct' shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.
 (3) For the week in which he or she failed without good cause to apply for available, suitable work, accept suitable work when offered, or return to his or her customary self-employment when directed to do so by the commissioner, and for the four weeks which immediately follow for such additional period as any offer of suitable work shall continue open for his or her acceptance. Such disqualification shall carry a reduction in the maximum benefit amount equal to four times the individual's weekly benefit amount.
 (4) For a week in which his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he or she was last employed, unless the commissioner is satisfied that he or she: (1) Was not participating, financing or directly interested in such dispute; and (2) did not belong to a grade or class of workers who were participating, financing or directly interested in the labor dispute which resulted in the stoppage of work. No disqualification under this subdivision shall be imposed if the employees are required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality, or if employees are denied the right of collective bargaining under generally prevailing conditions, or if an employer shuts down his or her plant or operation or dismisses his or her employees in order to force wage reduction, changes in hours or working conditions. For the purpose of this subdivision if any stoppage of work continues longer than four weeks after the termination of the labor dispute which caused stoppage of work, there shall be a rebuttable presumption that part of the stoppage of work which exists after said a period of four weeks after the termination of said the labor dispute did not exist because of said the labor dispute; and in such that event the burden shall be upon the employer or other interested party to show otherwise.
 (5) For a week with respect to which he or she is receiving or has received:
 (a) Wages in lieu of notice;
 (b) Compensation for temporary total disability under the workers' compensation law of any state or under a similar law of the United States; or
 (c) Unemployment compensation benefits under the laws of the United States or any other state.
 (6) For the week in which an individual has voluntarily quit employment to marry or to perform any marital, parental or family duty, or to attend to his or her personal business or affairs and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
 (7) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
 (8)(a) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services or was permanently residing in the United States under color of law at the time such services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act): Provided, That any modifications to the provisions of Section 3304(a)(14) of the federal Unemployment Tax Act as provided by Public Law 94-566 which specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act shall be deemed applicable under the provisions of this section;
 (b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits;
 (c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.
 (9) For each week in which an individual is unemployed because, having voluntarily left employment to attend a school, college, university or other educational institution, he or she is attending such school, college, university or other educational institution, or is awaiting entrance thereto or is awaiting the starting of a new term or session thereof, and until the individual returns to covered employment.
 (10) For each week in which he or she is unemployed because of his or her request, or that of his or her duly authorized agent, for a vacation period at a specified time that would leave the employer no other alternative but to suspend operations.
 (11) In the case of an individual who accepts an early retirement incentive package, unless he or she: (i) Establishes a well-grounded fear of imminent layoff supported by definitive objective facts involving fault on the part of the employer; and (ii) establishes that he or she would suffer a substantial loss by not accepting the early retirement incentive package.
_
(12) For each week with respect to which he or she is receiving or has received benefits under Title II of the Social Security Act or similar payments under any act of Congress, and/or or remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from any trust or fund contributed to by a base period and/or employer or chargeable employer or any combination of the above, the weekly benefit amount payable to such individual for such week shall be reduced (but not below zero) by the prorated weekly amount of said benefits, payments and/or or remuneration: Provided, That if such amount of benefits is not a multiple of $1, it shall be computed to the next lowest multiple of $1: Provided, however, That there shall be no disqualification if in the individual's base period there are no wages which were paid by the base period and/or employer or chargeable employer paying such remuneration, or by a fund into which the employer has paid during said base period: Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to such individual for such week shall not be reduced by any retirement benefits he or she is receiving or has received under Title II of the Social Security Act or similar payments under any act of Congress. Claimant may be required to certify as to whether or not he or she is receiving or has been receiving remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from a trust fund contributed to by a base period and/or employer or chargeable employer.
 (12) (13) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds such individual who within twenty-four calendar months immediately preceding such decision, has made a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or payment under this article: Provided, That disqualification under this subdivision shall not preclude prosecution under section seven, article ten of this chapter.
§21A-6-10. Benefit rate -- Total unemployment; annual computation and publication of rates.
 (a) Each eligible individual who is totally unemployed in any week shall be paid benefits with respect to that week at the weekly rate appearing in Column (C) in the benefit table in this section, on the line on which in Column (A) there is indicated the employee's wage class, except as otherwise provided under the term 'total and partial unemployment' in section twenty-seven, article one-a of this chapter. The employee's wage class shall be determined by his or her base period wages as shown in Column (B) in the benefit table. The right of an employee to receive benefits shall not be prejudiced nor the amount thereof be diminished by reason of failure by an employer to pay either the wages earned by the employee or the contribution due on such wages. An individual who is totally unemployed but earns in excess of $60 as a result of odd job or subsidiary work, or is paid a bonus in any benefit week shall be paid benefits for such week in accordance with the provisions of this chapter pertaining to benefits for partial unemployment.
 (b) (1) The maximum benefit for each wage class shall be equal to twenty-six times the weekly benefit rate.
 (2) The maximum benefit rate shall be sixty-six and two-thirds percent of the average weekly wage in West Virginia.
 (c) On July 1 of each year, the commissioner shall determine the maximum weekly benefit rate upon the basis of the formula set forth above and shall establish wage classes as are required, increasing or decreasing the amount of the base period wages required for each wage class by $150, establishing the weekly benefit rate for each wage class by rounded dollar amount to be fifty-five percent of one fifty-second of the median dollar amount of wages in the base period for such wage class, and establishing the maximum benefit for each wage class as an amount equal to twenty-six times the weekly benefit rate: Provided, That the commissioner shall not increase or decrease the maximum weekly benefit rate for the period beginning on the effective date of the amendment and reenactment of this section in the regular session of the legislature in 2009 until the threshold wage is reduced to $9,000, as required by subsection (d), section twenty-eight, article one-a of this chapter. The maximum weekly benefit rate, when computed by the commissioner, in accordance with the foregoing provisions, shall be rounded to the next lowest multiple of $1.
BENEFIT TABLE



A
Wage
Class


B
Wages in
Base Period



C
Weekly
Benefit
Rate
Maximum
Benefit in Benefit Year
for Total
and/or
Partial Un-employment
  Under   $2,200.00 Ineligible  
1 $2,200.00 - 2,349.99 24.00 $ 624.00
2 2,350.00 - 2,499.99 25.00 650.00
3 2,500.00 - 2,649.99 27.00 702.00
4 2,650.00 - 2,799.99 28.00 728.00
5 2,800.00 - 2,949.99 30.00 780.00
6 2,950.00 - 3,099.99 31.00 806.00
7 3,100.00 - 3,249.99 33.00 858.00
8 3,250.00 - 3,399.99 35.00 910.00
9 3,400.00 - 3,549.99 36.00 936.00
10 3,550.00 - 3,699.99 38.00 988.00
11 3,700.00 - 3,849.99 39.00 1,014.00
12 3,850.00 - 3,999.99 41.00 1,066.00
13 4,000.00 - 4,149.99 43.00 1,118.00
14 4,150.00 - 4,299.99 44.00 1,144.00
15 4,300.00 - 4,449.99 46.00 1,196.00
16 4,450.00 - 4,599.99 47.00 1,222.00
17 4,600.00 - 4,749.99 49.00 1,274.00
18 4,750.00 - 4,899.99 51.00 1,326.00
19 4,900.00 - 5,049.99 52.00 1,352.00
20 5,050.00 - 5,199.99 54.00 1,404.00
21 5,200.00 - 5,349.99 55.00 1,430.00
22 5,350.00 - 5,499.99 57.00 1,482.00
23 5,500.00 - 5,649.99 58.00 1,508.00
24 5,650.00 - 5,799.99 60.00 1,560.00
25 5,800.00 - 5,949.99 62.00 1,612.00
26 5,950.00 - 6,099.99 63.00 1,638.00
27 6,100.00 - 6,249.99 65.00 1,690.00
28 6,250.00 - 6,399.99 66.00 1,716.00
29 6,400.00 - 6,549.99 68.00 1,768.00
30 6,550.00 - 6,699.99 70.00 1,820.00
31 6,700.00 - 6,849.99 71.00 1,846.00
32 6,850.00 - 6,999.99 73.00 1,898.00
33 7,000.00 - 7,149.99 74.00 1,924.00
34 7,150.00 - 7,299.99 76.00 1,976.00
35 7,300.00 - 7,449.99 78.00 2,028.00
36 7,450.00 - 7,599.99 79.00 2,054.00
37 7,600.00 - 7,749.99 81.00 2,106.00
38 7,750.00 - 7,899.99 82.00 2,132.00
39 7,900.00 - 8,049.99 84.00 2,184.00
40 8,050.00 - 8,199.99 85.00 2,210.00
41 8,200.00 - 8,349.99 87.00 2,262.00
42 8,350.00 - 8,499.99 89.00 2,314.00
43 8,500.00 - 8,649.99 90.00 2,340.00
44 8,650.00 - 8,799.99 92.00 2,392.00
45 8,800.00 - 8,949.99 93.00 2,418.00
46 8,950.00 - 9,099.99 95.00 2,470.00
47 9,100.00 - 9,249.99 97.00 2,522.00
48 9,250.00 - 9,399.99 98.00 2,548.00
49 9,400.00 - 9,549.99 100.00 2,600.00
50 9,550.00 - 9,699.99 101.00 2,626.00
51 9,700.00 - 9,849.99 103.00 2,678.00
52 9,850.00 - 9,999.99 104.00 2,704.00
53 10,000.00 - 10,149.99 106.00 2,756.00
54 10,150.00 - 10,299.99 108.00 2,808.00
55 10,300.00 - 10,449.99 109.00 2,834.00
56 10,450.00 - 10,599.99 111.00 2,886.00
57 10,600.00 - 10,749.99 112.00 2,912.00
58 10,750.00 - 10,899.99 114.00 2,964.00
59 10,900.00 - 11,049.99 116.00 3,016.00
60 11,050.00 - 11,199.99 117.00 3,042.00
61 11,200.00 - 11,349.99 119.00 3,094.00
62 11,350.00 - 11,499.99 120.00 3,120.00
63 11,500.00 - 11,649.99 122.00 3,172.00
64 11,650.00 - 11,799.99 124.00 3,224.00
65 11,800.00 - 11,949.99 125.00 3,250.00
66 11,950.00 - 12,099.99 127.00 3,302.00
67 12,100.00 - 12,249.99 128.00 3,328.00
68 12,250.00 - 12,399.99 130.00 3,380.00
69 12,400.00 - 12,549.99 131.00 3,406.00
70 12,550.00 - 12,699.99 133.00 3,458.00
71 12,700.00 - 12,849.99 135.00 3,510.00
72 12,850.00 - 12,999.99 136.00 3,536.00
73 13,000.00 - 13,149.99 138.00 3,588.00
74 13,150.00 - 13,299.99 139.00 3,614.00
75 13,300.00 - 13,449.99 141.00 3,666.00
76 13,450.00 - 13,599.99 143.00 3,718.00
77 13,600.00 - 13,749.99 144.00 3,744.00
78 13,750.00 - 13,899.99 146.00 3,796.00
79 13,900.00 - 14,049.99 147.00 3,822.00
80 14,050.00 - 14,199.99 149.00 3,874.00
81 14,200.00 - 14,349.99 150.00 3,900.00
82 14,350.00 - 14,499.99 152.00 3,952.00
83 14,500.00 - 14,649.99 154.00 4,004.00
84 14,650.00 - 14,799.99 155.00 4,030.00
85 14,800.00 - 14,949.99 157.00 4,082.00
86 14,950.00 - 15,099.99 158.00 4,108.00
87 15,100.00 - 15,249.99 160.00 4,160.00
88 15,250.00 - 15,399.99 162.00 4,212.00
89 15,400.00 - 15,549.99 163.00 4,238.00
90 15,550.00 - 15,699.99 165.00 4,290.00
91 15,700.00 - 15,849.99 166.00 4,316.00
92 15,850.00 - 15,999.99 168.00 4,368.00
93 16,000.00 - 16,149.99 170.00 4,420.00
94 16,150.00 - 16,299.99 171.00 4,446.00
95 16,300.00 - 16,449.99 173.00 4,498.00
96 16,450.00 - 16,599.99 174.00 4,524.00
97 16,600.00 - 16,749.99 176.00 4,576.00
98 16,750.00 - 16,899.99 177.00 4,602.00
99 16,900.00 - 17,049.99 179.00 4,654.00
100 17,050.00 - 17,199.99 181.00 4,706.00
101 17,200.00 - 17,349.99 182.00 4,732.00
102 17,350.00 - 17,499.99 184.00 4,784.00
103 17,500.00 - 17,649.99 185.00 4,810.00
104 17,650.00 - 17,799.99 187.00 4,862.00
105 17,800.00 - 17,949.99 189.00 4,914.00
106 17,950.00 - 18,099.99 190.00 4,940.00
107 18,100.00 - 18,249.99 192.00 4,992.00
108 18,250.00 - 18,399.99 193.00 5,018.00
109 18,400.00 - 18,549.99 195.00 5,070.00
110 18,550.00 - 18,699.99 196.00 5,096.00
111 18,700.00 - 18,849.99 198.00 5,148.00
112 18,850.00 - 18,999.99 200.00 5,200.00
113 19,000.00 - 19,149.99 201.00 5,226.00
114 19,150.00 - 19,299.99 203.00 5,278.00
115 19,300.00 - 19,449.99 204.00 5,304.00
116 19,450.00 - 19,599.99 206.00 5,356.00
117 19,600.00 - 19,749.99 208.00 5,408.00
118 19,750.00 - 19,899.99 209.00 5,434.00
119 19,900.00 - 20,049.99 211.00 5,486.00
120 20,050.00 - 20,199.99 212.00 5,512.00
121 20,200.00 - 20,349.99 214.00 5,564.00
122 20,350.00 - 20,499.99 216.00 5,616.00
123 20,500.00 - 20,649.99 217.00 5,642.00
124 20,650.00 - 20,799.99 219.00 5,694.00
125 20,800.00 - 20,949.99 220.00 5,720.00
126 20,950.00 - 21,099.99 222.00 5,772.00
127 21,100.00 - 21,249.99 223.00 5,798.00
128 21,250.00 - 21,399.99 225.00 5,850.00
129 21,400.00 - 21,549.99 227.00 5,902.00
130 21,550.00 - 21,699.99 228.00 5,928.00
131 21,700.00 - 21,849.99 230.00 5,980.00
132 21,850.00 - 21,999.99 231.00 6,006.00
133 22,000.00 - 22,149.99 233.00 6,058.00
134 22,150.00 - 22,299.99 235.00 6,110.00
135 22,300.00 - 22,449.99 236.00 6,136.00
136 22,450.00 - 22,599.99 238.00 6,188.00
137 22,600.00 - 22,749.99 239.00 6,214.00
138 22,750.00 - 22,899.99 241.00 6,266.00
139 22,900.00 - 23,049.99 243.00 6,318.00
140 23,050.00 - 23,199.99 244.00 6,344.00
141 23,200.00 - 23,349.99 246.00 6,396.00
142 23,350.00 - 23,499.99 247.00 6,422.00
143 23,500.00 - 23,649.99 249.00 6,474.00
144 23,650.00 - 23,799.99 250.00 6,500.00
145 23,800.00 - 23,949.99 252.00 6,552.00
146 23,950.00 - 24,099.99 254.00 6,604.00
147 24,100.00 - 24,249.99 255.00 6,630.00
148 24,250.00 - 24,399.99 257.00 6,682.00
149 24,400.00 - 24,549.99 258.00 6,708.00
150 24,550.00 - 24,699.99 260.00 6,760.00
151 24,700.00 - 24,849.99 262.00 6,812.00
152 24,850.00 - 24,999.99 263.00 6,838.00
153 25,000.00 - 25,149.99 265.00 6,890.00
154 25,150.00 - 25,299.99 266.00 6,916.00
155 25,300.00 - 25,449.99 268.00 6,968.00
156 25,450.00 - 25,599.99 269.00 6,994.00
157 25,600.00 - 25,749.99 271.00 7,046.00
158 25,750.00 - 25,899.99 273.00 7,098.00
159 25,900.00 - 26,049.99 274.00 7,124.00
160 26,050.00 - 26,199.99 276.00 7,176.00
161 26,200.00 - 26,349.99 277.00 7,202.00
162 26,350.00 - 26,499.99 279.00 7,254.00
163 26,500.00 - 26,649.99 281.00 7,306.00
164 26,650.00 - 26,799.99 282.00 7,332.00
165 26,800.00 - 26,949.99 284.00 7,384.00
166 26,950.00 - 27,099.99 285.00 7,410.00
167 27,100.00 - 27,249.99 287.00 7,462.00
168 27,250.00 - 27,399.99 289.00 7,514.00
169 27,400.00 - AND OVER 290.00 7,540.00
_(d) After he or she has established such wage classes, the commissioner shall prepare and publish a table setting forth such information.     (e) Average weekly wage shall be computed by dividing the number of employees in West Virginia earning wages in covered employment into the total wages paid to employees in West Virginia in covered employment, and by further dividing said result by fifty-two, and shall be determined from employer wage and contribution reports for the previous calendar year which are furnished to the department on or before June 1 following such calendar year. The average weekly wage, as determined by the commissioner, shall be rounded to the next higher dollar.  (f) The computation and determination of rates as aforesaid shall be completed annually before July 1 and any such new wage class, with its corresponding wages in base period, weekly benefit rate, and maximum benefit in a benefit year established by the commissioner in the foregoing manner effective on July 1 shall apply only to a new claim established by a claimant on and after July 1, and does not apply to continued claims of a claimant based on his or her new claim established before said July 1.
BENEFIT TABLE

A
WAGE
  B
WAGES IN
C
WEEKLY

MAXIMUM
CLASS   BASE PERIOD BENEFIT RATE BENEFIT RATE
    Under $ 2,200.00 Ineligible  
1 $ 2,200.00 - 2,359.99 24.00 624.00
2   2,350.00 - 2,499.99 25.00 650.00
3   2,500.00 - 2,649.99 27.00 702.00
4   2,650.00 - 2,799.99 28.00 728.00
5   2,800.00 - 2,949.99 30.00 780.00
6   2,950.00 - 3,099.99 31.00 806.00
7   3,100.00 - 3,249.99 33.00 858.00
8   3,250.00 - 3,399.99 35.00 910.00
9   3,400.00 - 3,549.99 36.00 936.00
10   3,550.00 - 3,699.99 38.00 988.00
11   3,700.00 - 3,849.99 39.00 1,014.00
12   3,850.00 - 3,999.99 41.00 1,066.00
13   4,000.00 - 4,149.99 43.00 1,118.00
14   4,150.00 - 4,299.99 44.00 1,144.00
15   4,300.00 - 4,449.99 46.00 1,196.00
16   4,450.00 - 4,599.99 47.00 1,222.00
17   4,600.00 - 4,749.99 49.00 1,274.00
18   4,750.00 - 4,899.99 51.00 1,326.00
19   4,900.00 - 5,049.99 52.00 1,352.00
20   5,050.00 - 5,199.99 54.00 1,404.00
7,462.00 16827,250.00 -27,399.99289.00 7,514.00 16927,400.00 -27,549.99290.00 7,540.00 17027,550.00 -27,699.99292.00 7,592.00 17127,700.00 -27,849.99293.00 7,618.00 17227,850.00 -27,999.99295.00 7,670.00 17328,000.00 -28,149.99296.00 7,696.00 17428,150.00 -28,299.99298.00 7,748.00 17528,300.00 -28,449.99300.00 7,800.00 17628,450.00 -28,599.99301.00 7,826.00 17728,600.00 -28,749.99303.00 7,878.00 17828,750.00 -28,899.99304.00 7,904.00 17928,900.00 -29,049.99306.00 7,956.00 18029,050.00 -29,199.99308.00 8,008.00 18129,200.00 -29,349.99309.00 8,034.00 18229,350.00 -29,499.99311.00 8,086.00 18329,500.00 -29,649.99312.00 8,112.00 18429,650.00 -29,799.99314.00 8,164.00 18529,800.00 -
29,949.99315.00 8,190.00 18629,950.00 -30,099.99317.00 8,242.00 18730,100.00 -30,249.99319.00 8,294.00 18830,250.00 -30,399.99320.00 8,320.00 18930,400.00 -30,549.99322.00 8,372.00 19030,550.00 -30,699.99323.00 8,398.00 19130,700.00 -30,849.99325.00 8,450.00 19230,850.00 -30,999.99327.00 8,502.00 19331,000.00 -31,149.99328.00 8,528.00 19431,150.00 -31,299.99330.00 8,580.00 19531,300.00 -31,449.99331.00 8,606.00 19631,450.00 -31,599.99333.00 8,658.00 19731,600.00 -31,749.99335.00 8,710.00 19831,750.00 -31,899.99336.00 8,736.00 19931,900.00 -32,049.99338.00 8,788.00 20032,050.00 -32,199.99339.00 8,814.00 20132,200.00 -32,349.99341.00 8,866.00 20232,350.00 -32,499.99342.00 8,892.00 20332,500.00 -32,649.99344.00 8,944.00 20432,650.00 -32,799.99346.00 8,996.00 20532,800.00 -32,949.99347.00 9,022.00 20632,950.00 -33,099.99349.00 9,074.00 20733,100.00 -33,249.99350.00 9,100.00 20833,250.00 -33,399.99352.00 9,152.00 20933,400.00 -33,549.99354.00 9,204.00 21033,550.00 -
33,699.99355.00 9,230.0021133,700.00 -33,849.99357.00 9,282.0021233,850.00 -33,999.99358.00 9,308.0021334,000.00 -34,149.99360.00 9,360.0021434,150.00 -34,299.99361.00 9,386.0021534,300.00 -34,449.99363.00 9,438.0021634,450.00 -34,599.99365.00 9,490.0021734,600.00 -34,749.99366.00 9,516.0021834,750.00 -34,899.99368.00 9,568.0021934,900.00 -35,049.99369.00 9,594.0022035,050.00 -35,199.99371.00 9,646.0022135,200.00 -35,349.99373.00 9,698.0022235,350.00 -35,499.99374.00 9,724.0022335,500.00 -35,649.99376.00 9,776.0022435,650.00 -35,799.99377.00 9,802.0022535,800.00 -35,949.99379.00 9,854.0022635,950.00 -
36,999.99381.00 9,906.0022736,100.00 -36,249.99382.00 9,932.0022836,250.00 -36,399.99384.00 9,984.0022936,400.00 -36,549.99385.00 10,010.0023036,550.00 -36,699.99387.00 10,062.0023136,700.00 -36,849.99388.00 10,088.0023236,850.00 -36,999.99390.00 10,140.0023337,000.00 -37,149.99392.00 10,192.0023437,150.00 -37,299.99393.00 10,218.0023537,300.00 -37,449.99395.00 10,270.0023637,450.00 -37,599.99396.00 10,296.0023737,600.00 -37,749.99398.00 10,348.0023837,750.00 -37,899.99400.00 10,400.0023937,900.00 -38,049.99401.00 10,426.0024038,050.00 -38,199.99403.00 10,478.0024138,200.00 -38,349.99404.00 10,504.0024238,350.00 -38,499.99406.00 10,556.0024338,500.00 -38,649.99408.00 10,608.0024438,650.00 -38,799.99409.00 10,634.0024538,800.00 -38,949.99411.00 10,686.0024638,950.00 -39,099.99412.00 10,712.0024739,100.00 -39,249.99414.00 10,764.0024839,250.00 -39,399.99415.00 10,790.0024939,400.00 -39,549.99417.00 10,842.0025039,550.00 -39,699.99419.00 10,894.0025139,700.00 -39,849.99420.00 10,920.0025239,850.00 -39,999.99422.00 10,972.0025340,000.00 -40,149.99423.00 10,998.0025440,150.00 -and above424.00 11,024.00
21   5,200.00 - 5,349.99 55.00 1,430.00
22   5,350.00 - 5,499.99 57.00 1,482.00
23   5,500.00 - 5,649.99 58.00 1,508.00
24   5,650.00 - 5,799.99 60.00 1,560.00
25   5,800.00 - 5,949.99 62.00 1,612.00
26   5,950.00 - 6,099.99 63.00 1,638.00
27   6,100.00 - 6,249.99 65.00 1,690.00
28   6,250.00 - 6,399.99 66.00 1,716.00
29   6,400.00 - 6,549.99 68.00 1,768.00
30   6,550.00 - 6,699.99 70.00 1,820.00
31   6,700.00 - 6,849.99 71.00 1,846.00
32   6,850.00 - 6,999.99 73.00 1,898.00
33   7,000.00 - 7,149.99 74.00 1,924.00
34   7,150.00 - 7,299.99 76.00 1,976.00
35   7,300.00 - 7,449.99 78.00 2,028.00
36   7,450.00 - 7,599.99 79.00 2,054.00
37   7,600.00 - 7,749.99 81.00 2,106.00
38   7,750.00 - 7,899.99 82.00 2,132.00
39   7,900.00 - 8,049.99 84.00 2,184.00
40   8,050.00 - 8,199.99 85.00 2,210.00
41   8,200.00 - 8,349.99 87.00 2,262.00
42   8,350.00 - 8,499.99 89.00 2,314.00
43   8,500.00 - 8,649.99 90.00 2,340.00
44   8,650.00 - 8,799.99 92.00 2,392.00
45   8,800.00 - 8,949.99 93.00 2,418.00
46   8,950.00 - 9,099.99 95.00 2,470.00
47   9,100.00 - 9,249.99 97.00 2,522.00
48   9,250.00 - 9,399.99 98.00 2,548.00
49   9,400.00 - 9,549.99 100.00 2,600.00
50   9,550.00 - 9,699.99 101.00 2,626.00
51   9,700.00 - 9,849.99 103.00 2,678.00
52   9,850.00 - 9,999.99 104.00 2,704.00
53   10,000.00 - 10,149.99 106.00 2,756.00
54   10,150.00 - 10,299.99 108.00 2,808.00
55   10,300.00 - 10,449.99 109.00 2,834.00
56   10,450.00 - 10,599.99 111.00 2,886.00
57   10,600.00 - 10,749.99 112.00 2,912.00
58   10,750.00 - 10,899.99 114.00 2,964.00
59   10,900.00 - 11,049.99 116.00 3,016.00
60   11,050.00 - 11,199.99 117.00 3,042.00
61   11,200.00 - 11,349.99 119.00 3,094.00
62   11,350.00 - 11,499.99 120.00 3,120.00
63   11,500.00 - 11,649.99 122.00 3,172.00
64   11,650.00 - 11,799.99 124.00 3,224.00
65   11,800.00 - 11,949.99 125.00 3,250.00
66   11,950.00 - 12,099.99 127.00 3,302.00
67   12,100.00 - 12,249.99 128.00 3,328.00
68   12,250.00 - 12,399.99 130.00 3,380.00
69   12,400.00 - 12,549.99 131.00 3,406.00
70   12,550.00 - 12,699.99 133.00 3,458.00
71   12,700.00 - 12,849.99 135.00 3,510.00
72   12,850.00 - 12,999.99 136.00 3,536.00
73   13,000.00 - 13,149.99 138.00 3,588.00
74   13,150.00 - 13,299.99 139.00 3,614.00
75   13,300.00 - 13,449.99 141.00 3,666.00
76   13,450.00 - 13,599.99 143.00 3,718.00
77   13,600.00 - 13,749.99 144.00 3,744.00
78   13,750.00 - 13,899.99 146.00 3,796.00
79   13,900.00 - 14,049.99 147.00 3,822.00
80   14,050.00 - 14,199.99 149.00 3,874.00
81   14,200.00 - 14,349.99 150.00 3,900.00
82   14,350.00 - 14,499.99 152.00 3,952.00
83   14,500.00 - 14,649.99 154.00 4,004.00
84   14,650.00 - 14,799.99 155.00 4,030.00
85   14,800.00 - 14,949.99 157.00 4,082.00
86   14,950.00 - 15,099.99 158.00 4,108.00
87   15,100.00 - 15,249.99 160.00 4,160.00
88   15,250.00 - 15,399.99 162.00 4,212.00
89   15,400.00 - 15,549.99 163.00 4,238.00
90   15,550.00 - 15,699.99 165.00 4,290.00
91   15,700.00 - 15,849.99 166.00 4,316.00
92   15,850.00 - 15,999.99 168.00 4,368.00
93   16,000.00 - 16,149.99 170.00 4,420.00
94   16,150.00 - 16,299.99 171.00 4,446.00
95   16,300.00 - 16,449.99 173.00 4,498.00
96   16,450.00 - 16,599.99 174.00 4,524.00
97   16,600.00 - 16,749.99 176.00 4,576.00
98   16,750.00 - 16,899.99 177.00 4,602.00
99   16,900.00 - 17,049.99 179.00 4,654.00
100   17,050.00 - 17,199.99 181.00 4,706.00
101   17,200.00 - 17,349.99 182.00 4,732.00
102   17,350.00 - 17,499.99 184.00 4,784.00
103   17,500.00 - 17,649.99 185.00 4,810.00
104   17,650.00 - 17,799.99 187.00 4,862.00
105   17,800.00 - 17,949.99 189.00 4,914.00
106   17,950.00 - 18,099.99 190.00 4,940.00
107   18,100.00 - 18,249.99 192.00 4,992.00
108   18,250.00 - 18,399.99 193.00 5,018.00
109   18,400.00 - 18,549.99 195.00 5,070.00
110   18,550.00 - 18,699.99 196.00 5,096.00
111   18,700.00 - 18,849.99 198.00 5,148.00
112   18,850.00 - 18,999.99 200.00 5,200.00
113   19,000.00 - 19,149.99 201.00 5,226.00
114   19,150.00 - 19,299.99 203.00 5,278.00
115   19,300.00 - 19,449.99 204.00 5,304.00
116   19,450.00 - 19,599.99 206.00 5,356.00
117   19,600.00 - 19,749.99 208.00 5,408.00
118   19,750.00 - 19,899.99 209.00 5,434.00
119   19,900.00 - 20,049.99 211.00 5,486.00
120   20,050.00 - 20,199.99 212.00 5,512.00
121   20,200.00 - 20,349.99 214.00 5,564.00
122   20,350.00 - 20,499.99 216.00 5,616.00
123   20,500.00 - 20,649.99 217.00 5,642.00
124   20,650.00 - 20,799.99 219.00 5,694.00
125   20,800.00 - 20,949.99 220.00 5,720.00
126   20,950.00 - 21,099.99 222.00 5,772.00
127   21,100.00 - 21,249.99 223.00 5,798.00
128   21,250.00 - 21,399.99 225.00 5,850.00
129   21,400.00 - 21,549.99 227.00 5,902.00
130   21,550.00 - 21,699.99 228.00 5,928.00
131   21,700.00 - 21,849.99 230.00 5,980.00
132   21,850.00 - 21,999.99 231.00 6,006.00
133   22,000.00 - 22,149.99 233.00 6,058.00
134   22,150.00 - 22,299.99 235.00 6,110.00
135   22,300.00 - 22,449.99 236.00 6,136.00
136   22,450.00 - 22,599.99 238.00 6,188.00
137   22,600.00 - 22,749.99 239.00 6,214.00
138   22,750.00 - 22,899.99 241.00 6,266.00
139   22,900.00 - 23,049.99 243.00 6,318.00
140   23,050.00 - 23,199.99 244.00 6,344.00
141   23,200.00 - 23,349.99 246.00 6,396.00
142   23,350.00 - 23,499.99 247.00 6,422.00
143   23,500.00 - 23,649.99 249.00 6,474.00
144   23,650.00 - 23,799.99 250.00 6,500.00
145   23,800.00 - 23,949.99 252.00 6,552.00
146   23,950.00 - 24,099.99 254.00 6,604.00
147   24,100.00 - 24,249.99 255.00 6,630.00
148   24,250.00 - 24,399.99 257.00 6,682.00
149   24,400.00 - 24,549.99 258.00 6,708.00
150   24,550.00 - 24,699.99 260.00 6,760.00
151   24,700.00 - 24,849.99 262.00 6,812.00
152   24,850.00 - 24,999.99 263.00 6,838.00
153   25,000.00 - 25,149.99 265.00 6,890.00
154   25,150.00 - 25,299.99 266.00 6,916.00
155   25,300.00 - 25,449.99 268.00 6,968.00
156   25,450.00 - 25,599.99 269.00 6,994.00
157   25,600.00 - 25,749.99 271.00 7,046.00
158   25,750.00 - 25,899.99 273.00 7,098.00
159   25,900.00 - 26,049.99 274.00 7,124.00
160   26,050.00 - 26,199.99 276.00 7,176.00
161   26,200.00 - 26,349.99 277.00 7,202.00
162   26,350.00 - 26,499.99 279.00 7,254.00
163   26,500.00 - 26,649.99 281.00 7,306.00
164   26,650.00 - 26,799.99 282.00 7,332.00
165   26,800.00 - 26,949.99 284.00 7,384.00
166   26,950.00 - 27,099.99 285.00 7,410.00
167   27,100.00 - 27,249.99 287.00

CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of the West Virginia Workers' Compensation Commission.

  (a) (1) On or before the first day of June, two thousand five, the executive director may take such actions as are necessary to establish an employers' mutual insurance company as a domestic, private, nonstock, corporation to:
  (A) Insure employers against liability for injuries and occupational diseases for which their employees may be entitled to receive compensation pursuant to this chapter and federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq.;
  (B) Provide employer's liability insurance incidental to and provided in connection with the insurance specified in paragraph (A) of this subdivision, including coal-workers' pneumoconiosis coverage and employer excess liability coverage as provided in this chapter; and
  (C) Transact other kinds of property and casualty insurance for which the company is otherwise qualified under the provisions of this code.
  (2) The company may not sell, assign or transfer substantial assets or ownership of the company.
  (b) If the executive director establishes a domestic mutual insurance company pursuant to subsection (a) of this section:
  (1) As soon as practical, the company established pursuant to the provisions of this article shall, through a vote of a majority of its provisional board, file its corporate charter and bylaws with the Insurance Commissioner and apply for a license with the Insurance Commissioner to transact insurance in this state. Notwithstanding any other provision of this code, the Insurance Commissioner shall act on the documents within fifteen days of the filing by the company.
  (2) In recognition of the workers' compensation insurance liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial operation of the company, the Legislature authorizes the Insurance Commissioner to review the documentation submitted by the company and to determine the initial capital and surplus requirements of the company, notwithstanding the provisions of section five-b, article three, chapter thirty-three of this code. The company shall furnish the Insurance Commissioner with all information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The Insurance Commissioner shall monitor the economic viability of the company during its initial operation on not less than a monthly basis, until the commissioner, in his or her discretion, determines that monthly reporting is not necessary. In all other respects the company shall comply with the applicable provisions of chapter thirty-three of this code.
  (3) Subject to the provisions of subdivision (4) of this subsection, the Insurance Commissioner may waive other requirements imposed on mutual insurance companies by the provisions of chapter thirty-three of this code the Insurance Commissioner determines are necessary to enable the company to begin insuring employers in this state at the earliest possible date.
  (4) Within forty months of the date of the issuance of its license to transact insurance, the company shall comply with the capital and surplus requirements set forth in subsection (a), section five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment, unless the deadline is extended by the Insurance Commissioner.
  (c) For the duration of its existence, the company is not a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and liabilities of the company, whenever incurred, are the debts, claims, obligations and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer or employee of the state.
  (d) The moneys of the company are not part of the General Revenue Fund of the state. The debts, claims, obligations and liabilities of the company are not a debt of the state or a pledge of the credit of the state.
  (e) The company is not subject to provisions of article nine-a, chapter six of this code; the provisions of article two, chapter six-c of this code; the provisions of chapter twenty-nine-b of this code; the provisions of article three, chapter five-a of this code; the provisions of article six, chapter twenty-nine of this code; or the provisions of chapter twelve of this code.
  (f) If the commission has been terminated, effective upon the termination, private carriers, including the company, are not subject to payment of premium taxes, surcharges and credits contained in article three, chapter thirty-three of this code on premiums received for coverage under this chapter. In lieu thereof, the workers' compensation insurance market is subject to the following:
  (1) (A) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be collected by each private carrier from its policyholders. The surcharge percentage shall be calculated by dividing the previous fiscal year's total premiums collected plus deductible payments by all employers into the portion of the Insurance Commissioner's budget amount attributable to regulation of the private carrier market. This resulting percentage shall be applied to each policyholder's premium payment and deductible payments as a surcharge and remitted to the Insurance Commissioner. Said surcharge shall be remitted within ninety days of receipt of premium payments;
  (B) With respect to fiscal years beginning on and after the first day of July, two thousand eight, in lieu of the surcharge set forth in the preceding paragraph, each private carrier shall collect a surcharge in the amount of five and five-tenths percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied: Provided, That prior to the thirtieth day of June, two-thousand thirteen, and every five years thereafter, the commissioner shall review the percentage surcharge and determine a new percentage as he or she deems necessary.
  (C) The amounts required to be collected under paragraph (B) of this subdivision shall be remitted to the Insurance Commissioner on or before the twenty-fifth day of the month succeeding the end of the quarter in which they are collected, except for the fourth quarter for which the surcharge shall be remitted on or before the first day of March of the succeeding year.
  (2) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be remitted on a quarterly basis by self-insured employers and said percentage shall be calculated by dividing previous year's self-insured payroll in the state into the portion of the Insurance Commissioner's budget amount attributable to regulation of the self-insured employer market. This resulting percentage shall be applied to each self-insured employer's payroll and the resulting amount shall be remitted as a regulatory surcharge by each self-insured employer. The Industrial Council may promulgate a rule for implementation of this section. The company, all other private carriers and all self-insured employers shall furnish the Insurance Commissioner with all required information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The surcharge shall be calculated so as to only defray the costs associated with the administration of this chapter and the funds raised shall not be used for any other purpose except as set forth in subdivision (4) of this subsection;
  (3) (A) Each private carrier shall collect a premiums surcharge from its policyholders as annually determined, by the first day of May of each year, by the Insurance Commissioner to produce forty-five million dollars annually, of each policyholder's periodic premium amount for workers' compensation insurance: Provided, That the surcharge rate on policies issued or renewed on or after the first day of July, two thousand eight shall be nine percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied.
  (B) By the first day of May each year, the self-insured employer community shall be assessed a cumulative total of nine million dollars. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by the Industrial Council. The amount collected pursuant to this subdivision shall be remitted to the Insurance Commissioner for deposit in the Workers' Compensation Debt Reduction Fund created in section five, article two-d of this chapter.
  (4) On or before July 1, 2009, the Insurance Commissioner shall make a one-time lump sum transfer of forty million dollars generated from the surcharges assessed pursuant to paragraph (B), subdivision (1) of this subsection and subdivision (2) of this subsection to the Bureau of Employment Programs' Commissioner for deposit with the Secretary of the Treasury of the United States as a credit of this state in the unemployment trust fund account maintained pursuant to section four, article eight, chapter twenty-one-a of this code.
  (g) The new premiums surcharge imposed by paragraphs (A) and (B), subdivision (3), subsection (f) of this section sunset and are not collectible with respect to workers' compensation insurance premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two-d of this chapter have been retired and that the unfunded liability of the Old Fund has been paid or has been provided for in its entirety, whichever occurs last."
  Delegates Armstead and Schott moved to amend the amendment on page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That §11-24-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §21A-1-4 of said code be amended and reenacted; that §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A-1A-28 of said code be amended and reenacted; that §21A-5-10a of said code be amended and reenacted; and that §21A-6-1, §21A-6-3 and §21A-6-10 of said code be amended and reenacted; and that §23-2C-3 of said code be amended and reenacted, all to read as follows:
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-4. Imposition of primary tax and rate thereof; effective and termination dates.
  
Primary tax. --
  (1) In the case of taxable periods beginning after June 30, 1967, and ending prior to January 1, 1983, a tax is hereby imposed for each taxable year at the rate of six percent per annum on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five.
  (2) In the case of taxable periods beginning on or after January 1, 1983, and ending prior to July 1, 1987, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, and any banks, banking associations or corporations, trust companies, building and loan associations and savings and loan associations, at the rates which follow:
  (A) On taxable income not in excess of $50,000, the rate of six percent; and
  (B) On taxable income in excess of $50,000, the rate of seven percent.
  (3) In the case of taxable periods beginning on or after July 1, 1987, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of nine and three- quarters percent. Beginning July 1, 1988, and on each July 1 thereafter for four successive calendar years, the rate shall be reduced by fifteen one hundredths of one percent per year, with such rate to be nine percent on and after July 1, 1992.
  (4) In the case of taxable periods beginning on or after January 1, 2007, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of eight and three-quarters percent.
  (5) In the case of taxable periods beginning on or after January 1, 2009, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of eight and one-half percent.
  (6) In the case of taxable periods beginning on or after January 1, 2012, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven and three-quarters percent. Provided, That the reduction in tax authorized by this subsection shall be suspended if the combined balance of funds as of June 30, two thousand eleven, in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten five percent of the General Revenue Fund budgeted for the fiscal year commencing July 1, two thousand eleven: Provided, however, That the rate reduction schedule will resume in the calendar year immediately following any subsequent fiscal year when the combined balance of funds as of June 30 of that fiscal year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B next equals or exceeds ten five percent of the General Revenue Fund budgeted for the immediately succeeding fiscal year.
  (7) In the case of taxable periods beginning on or after January 1, 2013, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven percent. Provided, That the reduction in tax authorized by this subsection shall be suspended for one calendar year subsequent to the occurrence of the suspension of the reduction in tax authorized by subdivision (6) of this section: Provided, however, That the reduction in tax on the first day of any calendar year authorized by this subsection shall be suspended if the combined balance of funds as of June 30 of the preceding year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten five percent of the General Revenue Fund budgeted for the fiscal year commencing July 1, of the preceding year
  (8) In the case of taxable periods beginning on or after January 1, 2014, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of six and one-half percent. Provided, That the reduction in tax authorized by this subsection shall be suspended for one calendar year subsequent to the occurrence of the suspension of the reduction in tax authorized by subdivision (7) of this section: Provided, however, That the reduction in tax on the first day of any calendar year authorized by this subsection shall be suspended if the combined balance of funds as of June 30 of the preceding year in the Revenue Fund Shortfall Reserve Fund and the Revenue Fund Shortfall Reserve Fund - Part B established in section twenty, article two, chapter eleven-b of this code does not equal or exceed ten five percent of the General Revenue Fund budgeted for the fiscal year commencing July 1, of the preceding year
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Workforce West Virginia created; divisions within Workforce West Virginia created; certain terms defined; employer violator system.

 (a) There is continued an agency designated Workforce West Virginia, composed of:
 (1) Division of Unemployment Compensation;
 (2) Division of Employment Service;
 (3) Division of Workforce Development;
 (4) Division of Research, Information and Analysis; and
 (5) Any other divisions or units that the executive director determines are necessary.
 (b) Wherever within this chapter the term department, bureau or fund is used, it shall be taken to mean Workforce West Virginia unless otherwise indicated. Any reference in this code to the Bureau of Employment Programs means Workforce West Virginia. Any reference in this code to the Commissioner of the Bureau of Employment Programs or Employment Security means the Executive Director of Workforce West Virginia.
 (c) Workforce West Virginia shall be administered pursuant to subsection (b), section one, article two, chapter five-f of this code.
 (d) The Executive Director of Workforce West Virginia shall establish an employer violator system to identify individuals and employers who are in default on any assessment, surcharge, tax or penalty owed to the fund. The employer violator system shall prohibit violators who own, control or have a ten percent or more ownership interest, or other ownership interest as may be defined by the executive director, in any company from obtaining or maintaining any license, certificate or permit issued by the state until the violator has paid all moneys owed to the fund or has entered into and remains in compliance with a repayment agreement. The employer violator system shall work cooperatively with all state agencies to maintain an accurate, up-to-date list of violators which shall be available in electronic format and online for agencies and the public. Before an employer is added to the violator list, he or she shall be given notice and an opportunity for an expedited administrative hearing. The executive director shall propose for promulgation emergency and legislative rules to effectuate this subsection.
ARTICLE 1A. DEFINITIONS.
§21A-1A-5. Base period; alternative base period.
 
(a) 'Base period' means the first four out of the last five completed calendar quarters immediately preceding the first day of the individual's benefit year.
 (b) 'Alternative base period' means the last four completed calendar quarters immediately preceding the first day of the individual's benefit year.
§21A-1A-6. Base period employer; alternative base period employer.
 'Base period employer' and 'alternative base period employer' mean any employer who in the base period or alternative base period for any benefit year paid wages to an individual who filed claim for unemployment compensation within such benefit year.
§21A-1A-7. Base period wages; alternative base period wages.
 'Base period wages' and 'alternative base period wages' mean wages paid to an individual during the base period or alternative base period by all the individual's base period or alternative base period employers.
§21A-1A-28. Wages; average annual wage; threshold wage.
 (a) 'Wages' means all remuneration for personal service, including commissions, gratuities customarily received by an individual in the course of employment from persons other than the employing unit, as long as such gratuities equal or exceed an amount of not less than $20 each month and which are required to be reported to the employer by the employee, bonuses and the cash value of all remuneration in any medium other than cash except for agricultural labor and domestic service. The term 'wages' includes remuneration for service rendered to the state as a member of the state National Guard or Air National Guard only when serving on a temporary basis pursuant to a call made by the Governor under sections one and two, article one-d, chapter fifteen of this code.
 (b) The term 'wages' does not include:
 (1) That part of the remuneration which, after remuneration equal to $8,000 is paid during a calendar year to an individual by an employer or his or her predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year unless that part of the remuneration is subject to a tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. For the purposes of this section, the term 'employment' includes service constituting employment under any unemployment compensation law of another state; or which as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act is required to be covered under this chapter; and, except that for the purposes of sections one, ten, eleven and thirteen, article six of this chapter, all remuneration earned by an individual in employment shall be credited to the individual and included in his or her computation of base period wages: Provided, That the remuneration paid to an individual by an employer with respect to employment in another state or other states upon which contributions were required of and paid by such employer under an unemployment compensation law of such other state or states shall be included as a part of the remuneration equal to the amounts of $8,000 herein referred to. In applying such limitation on the amount of remuneration that is taxable, an employer shall be accorded the benefit of all or any portion of such amount which may have been paid by its predecessor or predecessors: Provided, however, That if the definition of the term 'wages' as contained in Section 3306(b) of the Internal Revenue Code of 1954, as amended, is amended to include remuneration in excess of $8,000 paid to an individual by an employer under the federal Unemployment Tax Act during any calendar year, wages for the purposes of this definition shall include remuneration paid in a calendar year to an individual by an employer subject to this chapter or his or her predecessor with respect to employment during any calendar year up to an amount equal to the amount of remuneration taxable under the federal Unemployment Tax Act;
 (2) The amount of any payment made (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) to, or on behalf of, an individual in its employ or any of his or her dependents, under a plan or system established by an employer which makes provision for individuals in its employ generally (or for such individuals and their dependents), or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of: (A) Retirement; or (B) sickness or accident disability payments made to an employee under an approved state workers' compensation law; or (C) medical or hospitalization expenses in connection with sickness or accident disability; or (D) death;
 (3) Any payment made by an employer to an individual in its employ (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) on account of retirement;
 (4) Any payment made by an employer on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability to, or on behalf of, an individual in its employ after the expiration of six calendar months following the last calendar month in which such individual worked for such employer;
 (5) Any payment made by an employer to, or on behalf of, an individual in its employ or his or her beneficiary: (A) From or to a trust described in Section 401(a) which is exempt from tax under Section 501(a) of the federal Internal Revenue Code at the time of such payments unless such payment is made to such individual as an employee of the trust as remuneration for services rendered by such individual and not as a beneficiary of the trust; or (B) under or to an annuity plan which, at the time of such payment, is a plan described in Section 403(a) of the federal Internal Revenue Code;
 (6) The payment by an employer of the tax imposed upon an employer under Section 3101 of the federal Internal Revenue Code with respect to remuneration paid to an employee for domestic service in a private home or the employer of agricultural labor;
 (7) Remuneration paid by an employer in any medium other than cash to an individual in its employ for service not in the course of the employer's trade or business;
 (8) Any payment (other than vacation or sick pay) made by an employer to an individual in its employ after the month in which he or she attains the age of sixty-five, if he or she did not work for the employer in the period for which such payment is made;
 (9) Payments, not required under any contract of hire, made to an individual with respect to his or her period of training or service in the armed forces of the United States by an employer by which such individual was formerly employed; and
 (10) Vacation pay, severance pay or savings plans received by an individual before or after becoming totally or partially unemployed but earned prior to becoming totally or partially unemployed: Provided, That the term totally or partially unemployed does not include: (A) Employees who are on vacation by reason of the request of the employees or their duly authorized agent, for a vacation at a specific time, and which request by the employees or their agent is acceded to by their employer; (B) employees who are on vacation by reason of the employer's request provided they are so informed at least ninety days prior to such vacation; or (C) employees who are on vacation by reason of the employer's request where such vacation is in addition to the regular vacation and the employer compensates such employee at a rate equal to or exceeding their regular daily rate of pay during the vacation period.
 (c) The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commissioner, except for remuneration other than cash for services performed in agricultural labor and domestic service.
_(d) 'Average annual wage' means the state's average annual wage which is computed on or before September 30 of the year immediately preceding the rate year and is the total remuneration paid by employers as reported on contribution reports on or before that date with respect to all employment during the four consecutive calendar quarters ending on June 30 of that year divided by the average monthly number of individuals performing services in employment during the same four calendar quarters as reported on the contribution reports.
ARTICLE 5. EMPLOYER COVERAGE AND RESPONSIBILITY.
§21A-5-10a. Optional assessments on employers and employees

_Unemployment compensation trust fund; balances; funding sources
.
 (a) On and after the first day of July, one thousand nine hundred eighty-seven, if the commissioner determines for a given projected quarter that the rates established under the provisions of section ten of this article will not result in payments being made to the unemployment compensation fund in an amount sufficient to finance the payment of benefits during such quarter, the commissioner shall certify such fact to the governor, and the governor shall, by executive order, direct the commissioner to establish a level of assessment for employees and employers in accordance with the provisions of this section which is sufficient to prevent, to the extent possible, a deficit in the funds available to pay benefits to eligible individuals.
 
(b) Pursuant to such executive order, every employer, contributing and reimbursable, subject to this chapter, shall be required to withhold from all persons in his employment an assessment which shall be in an amount not to exceed fifteen one hundredths (15/100) of one percent of an employee's gross wages, which amount, together with an assessment contributed by the employer in an amount as determined in accordance with the provisions of subsection (c) of this section, except for reimbursable employers who shall not be assessed, shall be paid to the bureau of employment programs on a form prescribed by the commissioner, at the same time and under the same conditions as the quarterly contribution payments required under the provisions of section seven, article five, chapter twenty-one-a of this code. The commissioner shall have the right to collect any delinquent assessments under this section in the same manner as provided for in section sixteen, article five, chapter twenty-one-a of this code; and in addition, any delinquency hereunder shall bear interest as set forth in section seventeen, article five, chapter twenty-one-a of this code.
(c) The commissioner shall establish the exact amounts of the employers' and employees' assessments at a level sufficient to generate the revenues needed to prevent a deficit which would otherwise result from the payment of benefits to eligible individuals, subject only to the limitation established in the preceding subsection (b) of this section. After determining the level of assessment on the gross wages of employees, the commissioner shall determine a rate of assessment to be imposed upon employers, except reimbursable employers, which rate shall be expressed as a percentage of wages as defined in section three, article one of this chapter, and which is sufficient to cause the total statewide assessment on such employers to equal the total statewide assessment imposed upon employees.
 
Notwithstanding any other provision of this section to the contrary, the solvency assessments on employers and employees established by this section hereby terminate on the first day of April, one thousand nine hundred ninety.
 
(a) On or after the first day of May, two thousand and nine until, and including, the thirty- first day of December, two thousand and nine, if the commissioner determines that the balance of the unemployment compensation trust fund is less than one hundred and eighty million dollars at the end of any calendar month, the commissioner shall certify such fact to the governor, and the governor shall, by executive order, direct the state treasurer to transfer funds from the revenue shortfall reserve fund to the unemployment compensation trust fund maintained pursuant to section four, article eight, chapter twenty-one-a of this code. The amount transferred in any month under this section shall not exceed the amount necessary to return the unemployment compensation trust fund to one hundred and eighty million dollars.
_(b) For the purpose of calculating the balance of the unemployment compensation trust fund at the end of any calendar month under subsection (a), the commissioner shall utilize and incorporate reasonable projections of incoming revenue to the unemployment compensation trust fund for the subsequent thirty days following the end of the calendar month for which the balance is calculated.
_(c) Total transfers from the revenue shortfall reserve fund to the unemployment compensation trust fund shall allowed pursuant to subsection (a) shall not exceed eighty million dollars.
Provided, That any amount necessary to restore the unemployment compensation trust fund to one hundred and eighty million dollars is available for transfer from the revenue shortfall reserve fund as described in subsection (a), as long as the total of any or all transfer does not exceed eighty million dollars.
_(d)
On or after the first day of July, two thousand and nine, until, and including, the thirty- first day of December, two thousand and nine, if the commissioner determines that the balance of the unemployment compensation trust fund is less than one hundred and eighty million dollars at the end of any calendar month, and if the governor determines that funds are unavailable to return the unemployment compensation trust fund to one hundred and eighty million dollars under subsection (a) because total transfers to the fund would exceed or have exceeded eighty million dollars as prohibited by subsection (c), or due to lack of available funds in the revenue shortfall reserve fund, the governor may, by executive order, authorize the unemployment compensation trust fund balance to continue with a balance less than one hundred and eighty million dollars until the Legislature next convenes.
ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-1. Eligibility qualifications.

 An unemployed individual shall be eligible to receive benefits only if the commissioner finds that:
 (1) He or she has registered for work at and thereafter continues to report at an employment office in accordance with the regulations of the commissioner;
 (2) He or she has made a claim for benefits in accordance with the provisions of article seven of this chapter and has furnished his or her Social Security number, or numbers if he or she has more than one such number;
 (3) He or she is able to work and is available for full-time work for which he or she is fitted by prior training or experience and is doing that which a reasonably prudent person in his or her circumstances would do in seeking work;
 (4) He or she has been totally or partially unemployed during his or her benefit year for a waiting period of one week prior to the week for which he or she claims benefits for total or partial unemployment;
 (5) He or she has within his or her base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her base period or, if he or she is not eligible under his or her base period, has within his or her alternative base period been paid wages for employment equal to not less than $2,200 and must have earned wages in more than one quarter of his or her alternative base period; and
 (6) Beginning the first day of November, one thousand nine hundred ninety-four, he He or she participates in reemployment services, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and needs reemployment services pursuant to a profiling system established by the commissioner, unless the commissioner determines that:
 (a) The individual has completed such services; or
 (b) There is justifiable cause for the claimant's failure to participate in such services.
§21A-6-3. Disqualification for benefits.
 Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:
 (1) For the week in which he or she left his or her most recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
 For the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual leaves his or her most recent work with an employer and if he or she in fact, within a fourteen-day calendar period, does return to employment with the last preceding employer with whom he or she was previously employed within the past year prior to his or her return to workday, and which last preceding employer, after having previously employed such individual for thirty working days or more, laid off such individual because of lack of work, which layoff occasioned the payment of benefits under this chapter or could have occasioned the payment of benefits under this chapter had such individual applied for such benefits. It is the intent of this paragraph to cause no disqualification for benefits for such an individual who complies with the foregoing set of requirements and conditions. Further, for the purpose of this subdivision, an individual shall not be deemed to have left his or her most recent work voluntarily without good cause involving fault on the part of the employer, if such individual was compelled to leave his or her work for his or her own health-related reasons and notifies the employer prior to leaving the job or within two business days after leaving the job or as soon as practicable and presents written certification from a licensed physician within thirty days of leaving the job that his or her work aggravated, worsened or will worsen the individual's health problem.
 (2) For the week in which he or she was discharged from his or her most recent work for misconduct and the six weeks immediately following such week; or for the week in which he or she was discharged from his or her last thirty-day employing unit for misconduct and the six weeks immediately following such week. Such disqualification shall carry a reduction in the maximum benefit amount equal to six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days during his or her benefit year, whether or not such days are consecutive, the maximum benefit amount shall be increased by the amount of the decrease imposed under the disqualification; except that:
 If he or she were discharged from his or her most recent work for one of the following reasons, or if he or she were discharged from his or her last thirty days employing unit for one of the following reasons: Misconduct Gross misconduct consisting of willful destruction of his or her employer's property; assault upon the person of his or her employer or any employee of his or her employer; if such assault is committed at such individual's place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, or being under the influence of any controlled substance, as defined in chapter sixty-a of this code without a valid prescription, while at work; adulterating or otherwise manipulating a sample or specimen in order to thwart a drug or alcohol test lawfully required of an employee; refusal to submit to random testing for alcohol or illegal controlled substances for employees in safety sensitive positions as defined in section two, article one-d, chapter twenty-one of this code; arson, theft, larceny, fraud or embezzlement in connection with his or her work; or any other gross misconduct; he or she shall be and remain disqualified for benefits until he or she has thereafter worked for at least thirty days in covered employment: Provided, That for the purpose of this subdivision the words any other gross misconduct shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.
 (3) For the week in which he or she failed without good cause to apply for available, suitable work, accept suitable work when offered, or return to his or her customary self-employment when directed to do so by the commissioner, and for the four weeks which immediately follow for such additional period as any offer of suitable work shall continue open for his or her acceptance. Such disqualification shall carry a reduction in the maximum benefit amount equal to four times the individual's weekly benefit amount.
 (4) For a week in which his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he or she was last employed, unless the commissioner is satisfied that he or she: (1) Was not participating, financing or directly interested in such dispute; and (2) did not belong to a grade or class of workers who were participating, financing or directly interested in the labor dispute which resulted in the stoppage of work. No disqualification under this subdivision shall be imposed if the employees are required to accept wages, hours or conditions of employment substantially less favorable than those prevailing for similar work in the locality, or if employees are denied the right of collective bargaining under generally prevailing conditions, or if an employer shuts down his or her plant or operation or dismisses his or her employees in order to force wage reduction, changes in hours or working conditions.
 For the purpose of this subdivision if any stoppage of work continues longer than four weeks after the termination of the labor dispute which caused stoppage of work, there shall be a rebuttable presumption that part of the stoppage of work which exists after said a period of four weeks after the termination of said the labor dispute did not exist because of said the labor dispute; and in such that event the burden shall be upon the employer or other interested party to show otherwise.
 (5) For a week with respect to which he or she is receiving or has received:
 (a) Wages in lieu of notice;
 (b) Compensation for temporary total disability under the workers' compensation law of any state or under a similar law of the United States; or
 (c) Unemployment compensation benefits under the laws of the United States or any other state.
 (6) For the week in which an individual has voluntarily quit employment to marry or to perform any marital, parental or family duty, or to attend to his or her personal business or affairs and until the individual returns to covered employment and has been employed in covered employment at least thirty working days.
 (7) Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the later of such seasons (or similar periods).
 (8)(a) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services or was permanently residing in the United States under color of law at the time such services were performed (including an alien who is lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act): Provided, That any modifications to the provisions of Section 3304(a)(14) of the federal Unemployment Tax Act as provided by Public Law 94-566 which specify other conditions or other effective date than stated herein for the denial of benefits based on services performed by aliens and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the federal Unemployment Tax Act shall be deemed applicable under the provisions of this section;
 (b) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits;
 (c) In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.
 (9) For each week in which an individual is unemployed because, having voluntarily left employment to attend a school, college, university or other educational institution, he or she is attending such school, college, university or other educational institution, or is awaiting entrance thereto or is awaiting the starting of a new term or session thereof, and until the individual returns to covered employment.
 (10) For each week in which he or she is unemployed because of his or her request, or that of his or her duly authorized agent, for a vacation period at a specified time that would leave the employer no other alternative but to suspend operations.
 (11) In the case of an individual who accepts an early retirement incentive package, unless he or she: (i) Establishes a well-grounded fear of imminent layoff supported by definitive objective facts involving fault on the part of the employer; and (ii) establishes that he or she would suffer a substantial loss by not accepting the early retirement incentive package.
_
(12) For each week with respect to which he or she is receiving or has received benefits under Title II of the Social Security Act or similar payments under any act of Congress, and/or or remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from any trust or fund contributed to by a base period and/or employer or chargeable employer or any combination of the above, the weekly benefit amount payable to such individual for such week shall be reduced (but not below zero) by the prorated weekly amount of said benefits, payments and/or or remuneration: Provided, That if such amount of benefits is not a multiple of $1, it shall be computed to the next lowest multiple of $1: Provided, however, That there shall be no disqualification if in the individual's base period there are no wages which were paid by the base period and/or employer or chargeable employer paying such remuneration, or by a fund into which the employer has paid during said base period: Provided further, That notwithstanding any other provision of this subdivision to the contrary, the weekly benefit amount payable to such individual for such week shall not be reduced by any retirement benefits he or she is receiving or has received under Title II of the Social Security Act or similar payments under any act of Congress. Claimant may be required to certify as to whether or not he or she is receiving or has been receiving remuneration in the form of an annuity, pension or other retirement pay from a base period and/or employer or chargeable employer or from a trust fund contributed to by a base period and/or employer or chargeable employer.
 (12) (13) For each week in which and for fifty-two weeks thereafter, beginning with the date of the decision, if the commissioner finds such individual who within twenty-four calendar months immediately preceding such decision, has made a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or payment under this article: Provided, That disqualification under this subdivision shall not preclude prosecution under section seven, article ten of this chapter.
§21A-6-10. Benefit rate -- Total unemployment; annual computation and publication of rates.

   (a) Each eligible individual who is totally unemployed in any week shall be paid benefits with respect to that week at the weekly rate appearing in Column (C) in the benefit table in this section, on the line on which in Column (A) there is indicated the employee's wage class, except as otherwise provided under the term 'total and partial unemployment' in section twenty-seven, article one-a of this chapter. The employee's wage class shall be determined by his or her base period wages as shown in Column (B) in the benefit table. The right of an employee to receive benefits shall not be prejudiced nor the amount thereof be diminished by reason of failure by an employer to pay either the wages earned by the employee or the contribution due on such wages. An individual who is totally unemployed but earns in excess of $60 as a result of odd job or subsidiary work, or is paid a bonus in any benefit week shall be paid benefits for such week in accordance with the provisions of this chapter pertaining to benefits for partial unemployment.
   (b) (1) The maximum benefit for each wage class shall be equal to twenty-six times the weekly benefit rate.
   (2) The maximum benefit rate shall be sixty-six and two-thirds percent of the average weekly wage in West Virginia.
   (c) On July 1 of each year, the commissioner shall determine the maximum weekly benefit rate upon the basis of the formula set forth above and shall establish wage classes as are required, increasing or decreasing the amount of the base period wages required for each wage class by $150, establishing the weekly benefit rate for each wage class by rounded dollar amount to be fifty-five percent of one fifty-second of the median dollar amount of wages in the base period for such wage class, and establishing the maximum benefit for each wage class as an amount equal to twenty-six times the weekly benefit. The maximum weekly benefit rate, when computed by the commissioner, in accordance with the foregoing provisions, shall be rounded to the next lowest multiple of $1.
BENEFIT TABLE




A
Wage
Class


B
Wages in
Base Period



C
Weekly
Benefit
Rate
Maximum
Benefit in Benefit Year
for Total
and/or
Partial Un-employment
  Under   $2,200.00 Ineligible  
1 $2,200.00 - 2,349.99 24.00 $ 624.00
2 2,350.00 - 2,499.99 25.00 650.00
3 2,500.00 - 2,649.99 27.00 702.00
4 2,650.00 - 2,799.99 28.00 728.00
5 2,800.00 - 2,949.99 30.00 780.00
6 2,950.00 - 3,099.99 31.00 806.00
7 3,100.00 - 3,249.99 33.00 858.00
8 3,250.00 - 3,399.99 35.00 910.00
9 3,400.00 - 3,549.99 36.00 936.00
10 3,550.00 - 3,699.99 38.00 988.00
11 3,700.00 - 3,849.99 39.00 1,014.00
12 3,850.00 - 3,999.99 41.00 1,066.00
13 4,000.00 - 4,149.99 43.00 1,118.00
14 4,150.00 - 4,299.99 44.00 1,144.00
15 4,300.00 - 4,449.99 46.00 1,196.00
16 4,450.00 - 4,599.99 47.00 1,222.00
17 4,600.00 - 4,749.99 49.00 1,274.00
18 4,750.00 - 4,899.99 51.00 1,326.00
19 4,900.00 - 5,049.99 52.00 1,352.00
20 5,050.00 - 5,199.99 54.00 1,404.00
21 5,200.00 - 5,349.99 55.00 1,430.00
22 5,350.00 - 5,499.99 57.00 1,482.00
23 5,500.00 - 5,649.99 58.00 1,508.00
24 5,650.00 - 5,799.99 60.00 1,560.00
25 5,800.00 - 5,949.99 62.00 1,612.00
26 5,950.00 - 6,099.99 63.00 1,638.00
27 6,100.00 - 6,249.99 65.00 1,690.00
28 6,250.00 - 6,399.99 66.00 1,716.00
29 6,400.00 - 6,549.99 68.00 1,768.00
30 6,550.00 - 6,699.99 70.00 1,820.00
31 6,700.00 - 6,849.99 71.00 1,846.00
32 6,850.00 - 6,999.99 73.00 1,898.00
33 7,000.00 - 7,149.99 74.00 1,924.00
34 7,150.00 - 7,299.99 76.00 1,976.00
35 7,300.00 - 7,449.99 78.00 2,028.00
36 7,450.00 - 7,599.99 79.00 2,054.00
37 7,600.00 - 7,749.99 81.00 2,106.00
38 7,750.00 - 7,899.99 82.00 2,132.00
39 7,900.00 - 8,049.99 84.00 2,184.00
40 8,050.00 - 8,199.99 85.00 2,210.00
41 8,200.00 - 8,349.99 87.00 2,262.00
42 8,350.00 - 8,499.99 89.00 2,314.00
43 8,500.00 - 8,649.99 90.00 2,340.00
44 8,650.00 - 8,799.99 92.00 2,392.00
45 8,800.00 - 8,949.99 93.00 2,418.00
46 8,950.00 - 9,099.99 95.00 2,470.00
47 9,100.00 - 9,249.99 97.00 2,522.00
48 9,250.00 - 9,399.99 98.00 2,548.00
49 9,400.00 - 9,549.99 100.00 2,600.00
50 9,550.00 - 9,699.99 101.00 2,626.00
51 9,700.00 - 9,849.99 103.00 2,678.00
52 9,850.00 - 9,999.99 104.00 2,704.00
53 10,000.00 - 10,149.99 106.00 2,756.00
54 10,150.00 - 10,299.99 108.00 2,808.00
55 10,300.00 - 10,449.99 109.00 2,834.00
56 10,450.00 - 10,599.99 111.00 2,886.00
57 10,600.00 - 10,749.99 112.00 2,912.00
58 10,750.00 - 10,899.99 114.00 2,964.00
59 10,900.00 - 11,049.99 116.00 3,016.00
60 11,050.00 - 11,199.99 117.00 3,042.00
61 11,200.00 - 11,349.99 119.00 3,094.00
62 11,350.00 - 11,499.99 120.00 3,120.00
63 11,500.00 - 11,649.99 122.00 3,172.00
64 11,650.00 - 11,799.99 124.00 3,224.00
65 11,800.00 - 11,949.99 125.00 3,250.00
66 11,950.00 - 12,099.99 127.00 3,302.00
67 12,100.00 - 12,249.99 128.00 3,328.00
68 12,250.00 - 12,399.99 130.00 3,380.00
69 12,400.00 - 12,549.99 131.00 3,406.00
70 12,550.00 - 12,699.99 133.00 3,458.00
71 12,700.00 - 12,849.99 135.00 3,510.00
72 12,850.00 - 12,999.99 136.00 3,536.00
73 13,000.00 - 13,149.99 138.00 3,588.00
74 13,150.00 - 13,299.99 139.00 3,614.00
75 13,300.00 - 13,449.99 141.00 3,666.00
76 13,450.00 - 13,599.99 143.00 3,718.00
77 13,600.00 - 13,749.99 144.00 3,744.00
78 13,750.00 - 13,899.99 146.00 3,796.00
79 13,900.00 - 14,049.99 147.00 3,822.00
80 14,050.00 - 14,199.99 149.00 3,874.00
81 14,200.00 - 14,349.99 150.00 3,900.00
82 14,350.00 - 14,499.99 152.00 3,952.00
83 14,500.00 - 14,649.99 154.00 4,004.00
84 14,650.00 - 14,799.99 155.00 4,030.00
85 14,800.00 - 14,949.99 157.00 4,082.00
86 14,950.00 - 15,099.99 158.00 4,108.00
87 15,100.00 - 15,249.99 160.00 4,160.00
88 15,250.00 - 15,399.99 162.00 4,212.00
89 15,400.00 - 15,549.99 163.00 4,238.00
90 15,550.00 - 15,699.99 165.00 4,290.00
91 15,700.00 - 15,849.99 166.00 4,316.00
92 15,850.00 - 15,999.99 168.00 4,368.00
93 16,000.00 - 16,149.99 170.00 4,420.00
94 16,150.00 - 16,299.99 171.00 4,446.00
95 16,300.00 - 16,449.99 173.00 4,498.00
96 16,450.00 - 16,599.99 174.00 4,524.00
97 16,600.00 - 16,749.99 176.00 4,576.00
98 16,750.00 - 16,899.99 177.00 4,602.00
99 16,900.00 - 17,049.99 179.00 4,654.00
100 17,050.00 - 17,199.99 181.00 4,706.00
101 17,200.00 - 17,349.99 182.00 4,732.00
102 17,350.00 - 17,499.99 184.00 4,784.00
103 17,500.00 - 17,649.99 185.00 4,810.00
104 17,650.00 - 17,799.99 187.00 4,862.00
105 17,800.00 - 17,949.99 189.00 4,914.00
106 17,950.00 - 18,099.99 190.00 4,940.00
107 18,100.00 - 18,249.99 192.00 4,992.00
108 18,250.00 - 18,399.99 193.00 5,018.00
109 18,400.00 - 18,549.99 195.00 5,070.00
110 18,550.00 - 18,699.99 196.00 5,096.00
111 18,700.00 - 18,849.99 198.00 5,148.00
112 18,850.00 - 18,999.99 200.00 5,200.00
113 19,000.00 - 19,149.99 201.00 5,226.00
114 19,150.00 - 19,299.99 203.00 5,278.00
115 19,300.00 - 19,449.99 204.00 5,304.00
116 19,450.00 - 19,599.99 206.00 5,356.00
117 19,600.00 - 19,749.99 208.00 5,408.00
118 19,750.00 - 19,899.99 209.00 5,434.00
119 19,900.00 - 20,049.99 211.00 5,486.00
120 20,050.00 - 20,199.99 212.00 5,512.00
121 20,200.00 - 20,349.99 214.00 5,564.00
122 20,350.00 - 20,499.99 216.00 5,616.00
123 20,500.00 - 20,649.99 217.00 5,642.00
124 20,650.00 - 20,799.99 219.00 5,694.00
125 20,800.00 - 20,949.99 220.00 5,720.00
126 20,950.00 - 21,099.99 222.00 5,772.00
127 21,100.00 - 21,249.99 223.00 5,798.00
128 21,250.00 - 21,399.99 225.00 5,850.00
129 21,400.00 - 21,549.99 227.00 5,902.00
130 21,550.00 - 21,699.99 228.00 5,928.00
131 21,700.00 - 21,849.99 230.00 5,980.00
132 21,850.00 - 21,999.99 231.00 6,006.00
133 22,000.00 - 22,149.99 233.00 6,058.00
134 22,150.00 - 22,299.99 235.00 6,110.00
135 22,300.00 - 22,449.99 236.00 6,136.00
136 22,450.00 - 22,599.99 238.00 6,188.00
137 22,600.00 - 22,749.99 239.00 6,214.00
138 22,750.00 - 22,899.99 241.00 6,266.00
139 22,900.00 - 23,049.99 243.00 6,318.00
140 23,050.00 - 23,199.99 244.00 6,344.00
141 23,200.00 - 23,349.99 246.00 6,396.00
142 23,350.00 - 23,499.99 247.00 6,422.00
143 23,500.00 - 23,649.99 249.00 6,474.00
144 23,650.00 - 23,799.99 250.00 6,500.00
145 23,800.00 - 23,949.99 252.00 6,552.00
146 23,950.00 - 24,099.99 254.00 6,604.00
147 24,100.00 - 24,249.99 255.00 6,630.00
148 24,250.00 - 24,399.99 257.00 6,682.00
149 24,400.00 - 24,549.99 258.00 6,708.00
150 24,550.00 - 24,699.99 260.00 6,760.00
151 24,700.00 - 24,849.99 262.00 6,812.00
152 24,850.00 - 24,999.99 263.00 6,838.00
153 25,000.00 - 25,149.99 265.00 6,890.00
154 25,150.00 - 25,299.99 266.00 6,916.00
155 25,300.00 - 25,449.99 268.00 6,968.00
156 25,450.00 - 25,599.99 269.00 6,994.00
157 25,600.00 - 25,749.99 271.00 7,046.00
158 25,750.00 - 25,899.99 273.00 7,098.00
159 25,900.00 - 26,049.99 274.00 7,124.00
160 26,050.00 - 26,199.99 276.00 7,176.00
161 26,200.00 - 26,349.99 277.00 7,202.00
162 26,350.00 - 26,499.99 279.00 7,254.00
163 26,500.00 - 26,649.99 281.00 7,306.00
164 26,650.00 - 26,799.99 282.00 7,332.00
165 26,800.00 - 26,949.99 284.00 7,384.00
166 26,950.00 - 27,099.99 285.00 7,410.00
167 27,100.00 - 27,249.99 287.00 7,462.00
168 27,250.00 - 27,399.99 289.00 7,514.00
169 27,400.00 - AND OVER 290.00 7,540.00
___(d) After he or she has established such wage classes, the commissioner shall prepare and publish a table setting forth such information.   (e) Average weekly wage shall be computed by dividing the number of employees in West Virginia earning wages in covered employment into the total wages paid to employees in West Virginia in covered employment, and by further dividing said result by fifty-two, and shall be determined from employer wage and contribution reports for the previous calendar year which are furnished to the department on or before June 1 following such calendar year. The average weekly wage, as determined by the commissioner, shall be rounded to the next higher dollar.    (f) The computation and determination of rates as aforesaid shall be completed annually before July 1 and any such new wage class, with its corresponding wages in base period, weekly benefit rate, and maximum benefit in a benefit year established by the commissioner in the foregoing manner effective on July 1 shall apply only to a new claim established by a claimant on and after July 1, and does not apply to continued claims of a claimant based on his or her new claim established before said July 1.
BENEFIT TABLE

A
WAGE
  B
WAGES IN
C
WEEKLY

MAXIMUM
CLASS   BASE PERIOD BENEFIT RATE BENEFIT RATE
    Under $ 2,200.00 Ineligible  
1 $ 2,200.00 - 2,359.99 24.00 624.00
2   2,350.00 - 2,499.99 25.00 650.00
3   2,500.00 - 2,649.99 27.00 702.00
4   2,650.00 - 2,799.99 28.00 728.00
5   2,800.00 - 2,949.99 30.00 780.00
6   2,950.00 - 3,099.99 31.00 806.00
7   3,100.00 - 3,249.99 33.00 858.00
8   3,250.00 - 3,399.99 35.00 910.00
9   3,400.00 - 3,549.99 36.00 936.00
10   3,550.00 - 3,699.99 38.00 988.00
11   3,700.00 - 3,849.99 39.00 1,014.00
12   3,850.00 - 3,999.99 41.00 1,066.00
13   4,000.00 - 4,149.99 43.00 1,118.00
14   4,150.00 - 4,299.99 44.00 1,144.00
15   4,300.00 - 4,449.99 46.00 1,196.00
16   4,450.00 - 4,599.99 47.00 1,222.00
17   4,600.00 - 4,749.99 49.00 1,274.00
18   4,750.00 - 4,899.99 51.00 1,326.00
19   4,900.00 - 5,049.99 52.00 1,352.00
20   5,050.00 - 5,199.99 54.00 1,404.00
7,462.00 16827,250.00 -27,399.99289.00 7,514.00 16927,400.00 -27,549.99290.00 7,540.00 17027,550.00 -27,699.99292.00 7,592.00 17127,700.00 -27,849.99293.00 7,618.00 17227,850.00 -27,999.99295.00 7,670.00 17328,000.00 -28,149.99296.00 7,696.00 17428,150.00 -28,299.99298.00 7,748.00 17528,300.00 -28,449.99300.00 7,800.00 17628,450.00 -28,599.99301.00 7,826.00 17728,600.00 -28,749.99303.00 7,878.00 17828,750.00 -28,899.99304.00 7,904.00 17928,900.00 -29,049.99306.00 7,956.00 18029,050.00 -29,199.99308.00 8,008.00 18129,200.00 -29,349.99309.00 8,034.00 18229,350.00 -29,499.99311.00 8,086.00 18329,500.00 -29,649.99312.00 8,112.00 18429,650.00 -29,799.99314.00 8,164.00 18529,800.00 -
29,949.99315.00 8,190.00 18629,950.00 -30,099.99317.00 8,242.00 18730,100.00 -30,249.99319.00 8,294.00 18830,250.00 -30,399.99320.00 8,320.00 18930,400.00 -30,549.99322.00 8,372.00 19030,550.00 -30,699.99323.00 8,398.00 19130,700.00 -30,849.99325.00 8,450.00 19230,850.00 -30,999.99327.00 8,502.00 19331,000.00 -31,149.99328.00 8,528.00 19431,150.00 -31,299.99330.00 8,580.00 19531,300.00 -31,449.99331.00 8,606.00 19631,450.00 -31,599.99333.00 8,658.00 19731,600.00 -31,749.99335.00 8,710.00 19831,750.00 -31,899.99336.00 8,736.00 19931,900.00 -32,049.99338.00 8,788.00 20032,050.00 -32,199.99339.00 8,814.00 20132,200.00 -32,349.99341.00 8,866.00 20232,350.00 -32,499.99342.00 8,892.00 20332,500.00 -32,649.99344.00 8,944.00 20432,650.00 -32,799.99346.00 8,996.00 20532,800.00 -32,949.99347.00 9,022.00 20632,950.00 -33,099.99349.00 9,074.00 20733,100.00 -33,249.99350.00 9,100.00 20833,250.00 -33,399.99352.00 9,152.00 20933,400.00 -33,549.99354.00 9,204.00 21033,550.00 -
33,699.99355.00 9,230.0021133,700.00 -33,849.99357.00 9,282.0021233,850.00 -33,999.99358.00 9,308.0021334,000.00 -34,149.99360.00 9,360.0021434,150.00 -34,299.99361.00 9,386.0021534,300.00 -34,449.99363.00 9,438.0021634,450.00 -34,599.99365.00 9,490.0021734,600.00 -34,749.99366.00 9,516.0021834,750.00 -34,899.99368.00 9,568.0021934,900.00 -35,049.99369.00 9,594.0022035,050.00 -35,199.99371.00 9,646.0022135,200.00 -35,349.99373.00 9,698.0022235,350.00 -35,499.99374.00 9,724.0022335,500.00 -35,649.99376.00 9,776.0022435,650.00 -35,799.99377.00 9,802.0022535,800.00 -35,949.99379.00 9,854.0022635,950.00 -
36,999.99381.00 9,906.0022736,100.00 -36,249.99382.00 9,932.0022836,250.00 -36,399.99384.00 9,984.0022936,400.00 -36,549.99385.00 10,010.0023036,550.00 -36,699.99387.00 10,062.0023136,700.00 -36,849.99388.00 10,088.0023236,850.00 -36,999.99390.00 10,140.0023337,000.00 -37,149.99392.00 10,192.0023437,150.00 -37,299.99393.00 10,218.0023537,300.00 -37,449.99395.00 10,270.0023637,450.00 -37,599.99396.00 10,296.0023737,600.00 -37,749.99398.00 10,348.0023837,750.00 -37,899.99400.00 10,400.0023937,900.00 -38,049.99401.00 10,426.0024038,050.00 -38,199.99403.00 10,478.0024138,200.00 -38,349.99404.00 10,504.0024238,350.00 -38,499.99406.00 10,556.0024338,500.00 -38,649.99408.00 10,608.0024438,650.00 -38,799.99409.00 10,634.0024538,800.00 -38,949.99411.00 10,686.0024638,950.00 -39,099.99412.00 10,712.0024739,100.00 -39,249.99414.00 10,764.0024839,250.00 -39,399.99415.00 10,790.0024939,400.00 -39,549.99417.00 10,842.0025039,550.00 -39,699.99419.00 10,894.0025139,700.00 -39,849.99420.00 10,920.0025239,850.00 -39,999.99422.00 10,972.0025340,000.00 -40,149.99423.00 10,998.0025440,150.00 -and above424.00 11,024.00
21   5,200.00 - 5,349.99 55.00 1,430.00
22   5,350.00 - 5,499.99 57.00 1,482.00
23   5,500.00 - 5,649.99 58.00 1,508.00
24   5,650.00 - 5,799.99 60.00 1,560.00
25   5,800.00 - 5,949.99 62.00 1,612.00
26   5,950.00 - 6,099.99 63.00 1,638.00
27   6,100.00 - 6,249.99 65.00 1,690.00
28   6,250.00 - 6,399.99 66.00 1,716.00
29   6,400.00 - 6,549.99 68.00 1,768.00
30   6,550.00 - 6,699.99 70.00 1,820.00
31   6,700.00 - 6,849.99 71.00 1,846.00
32   6,850.00 - 6,999.99 73.00 1,898.00
33   7,000.00 - 7,149.99 74.00 1,924.00
34   7,150.00 - 7,299.99 76.00 1,976.00
35   7,300.00 - 7,449.99 78.00 2,028.00
36   7,450.00 - 7,599.99 79.00 2,054.00
37   7,600.00 - 7,749.99 81.00 2,106.00
38   7,750.00 - 7,899.99 82.00 2,132.00
39   7,900.00 - 8,049.99 84.00 2,184.00
40   8,050.00 - 8,199.99 85.00 2,210.00
41   8,200.00 - 8,349.99 87.00 2,262.00
42   8,350.00 - 8,499.99 89.00 2,314.00
43   8,500.00 - 8,649.99 90.00 2,340.00
44   8,650.00 - 8,799.99 92.00 2,392.00
45   8,800.00 - 8,949.99 93.00 2,418.00
46   8,950.00 - 9,099.99 95.00 2,470.00
47   9,100.00 - 9,249.99 97.00 2,522.00
48   9,250.00 - 9,399.99 98.00 2,548.00
49   9,400.00 - 9,549.99 100.00 2,600.00
50   9,550.00 - 9,699.99 101.00 2,626.00
51   9,700.00 - 9,849.99 103.00 2,678.00
52   9,850.00 - 9,999.99 104.00 2,704.00
53   10,000.00 - 10,149.99 106.00 2,756.00
54   10,150.00 - 10,299.99 108.00 2,808.00
55   10,300.00 - 10,449.99 109.00 2,834.00
56   10,450.00 - 10,599.99 111.00 2,886.00
57   10,600.00 - 10,749.99 112.00 2,912.00
58   10,750.00 - 10,899.99 114.00 2,964.00
59   10,900.00 - 11,049.99 116.00 3,016.00
60   11,050.00 - 11,199.99 117.00 3,042.00
61   11,200.00 - 11,349.99 119.00 3,094.00
62   11,350.00 - 11,499.99 120.00 3,120.00
63   11,500.00 - 11,649.99 122.00 3,172.00
64   11,650.00 - 11,799.99 124.00 3,224.00
65   11,800.00 - 11,949.99 125.00 3,250.00
66   11,950.00 - 12,099.99 127.00 3,302.00
67   12,100.00 - 12,249.99 128.00 3,328.00
68   12,250.00 - 12,399.99 130.00 3,380.00
69   12,400.00 - 12,549.99 131.00 3,406.00
70   12,550.00 - 12,699.99 133.00 3,458.00
71   12,700.00 - 12,849.99 135.00 3,510.00
72   12,850.00 - 12,999.99 136.00 3,536.00
73   13,000.00 - 13,149.99 138.00 3,588.00
74   13,150.00 - 13,299.99 139.00 3,614.00
75   13,300.00 - 13,449.99 141.00 3,666.00
76   13,450.00 - 13,599.99 143.00 3,718.00
77   13,600.00 - 13,749.99 144.00 3,744.00
78   13,750.00 - 13,899.99 146.00 3,796.00
79   13,900.00 - 14,049.99 147.00 3,822.00
80   14,050.00 - 14,199.99 149.00 3,874.00
81   14,200.00 - 14,349.99 150.00 3,900.00
82   14,350.00 - 14,499.99 152.00 3,952.00
83   14,500.00 - 14,649.99 154.00 4,004.00
84   14,650.00 - 14,799.99 155.00 4,030.00
85   14,800.00 - 14,949.99 157.00 4,082.00
86   14,950.00 - 15,099.99 158.00 4,108.00
87   15,100.00 - 15,249.99 160.00 4,160.00
88   15,250.00 - 15,399.99 162.00 4,212.00
89   15,400.00 - 15,549.99 163.00 4,238.00
90   15,550.00 - 15,699.99 165.00 4,290.00
91   15,700.00 - 15,849.99 166.00 4,316.00
92   15,850.00 - 15,999.99 168.00 4,368.00
93   16,000.00 - 16,149.99 170.00 4,420.00
94   16,150.00 - 16,299.99 171.00 4,446.00
95   16,300.00 - 16,449.99 173.00 4,498.00
96   16,450.00 - 16,599.99 174.00 4,524.00
97   16,600.00 - 16,749.99 176.00 4,576.00
98   16,750.00 - 16,899.99 177.00 4,602.00
99   16,900.00 - 17,049.99 179.00 4,654.00
100   17,050.00 - 17,199.99 181.00 4,706.00
101   17,200.00 - 17,349.99 182.00 4,732.00
102   17,350.00 - 17,499.99 184.00 4,784.00
103   17,500.00 - 17,649.99 185.00 4,810.00
104   17,650.00 - 17,799.99 187.00 4,862.00
105   17,800.00 - 17,949.99 189.00 4,914.00
106   17,950.00 - 18,099.99 190.00 4,940.00
107   18,100.00 - 18,249.99 192.00 4,992.00
108   18,250.00 - 18,399.99 193.00 5,018.00
109   18,400.00 - 18,549.99 195.00 5,070.00
110   18,550.00 - 18,699.99 196.00 5,096.00
111   18,700.00 - 18,849.99 198.00 5,148.00
112   18,850.00 - 18,999.99 200.00 5,200.00
113   19,000.00 - 19,149.99 201.00 5,226.00
114   19,150.00 - 19,299.99 203.00 5,278.00
115   19,300.00 - 19,449.99 204.00 5,304.00
116   19,450.00 - 19,599.99 206.00 5,356.00
117   19,600.00 - 19,749.99 208.00 5,408.00
118   19,750.00 - 19,899.99 209.00 5,434.00
119   19,900.00 - 20,049.99 211.00 5,486.00
120   20,050.00 - 20,199.99 212.00 5,512.00
121   20,200.00 - 20,349.99 214.00 5,564.00
122   20,350.00 - 20,499.99 216.00 5,616.00
123   20,500.00 - 20,649.99 217.00 5,642.00
124   20,650.00 - 20,799.99 219.00 5,694.00
125   20,800.00 - 20,949.99 220.00 5,720.00
126   20,950.00 - 21,099.99 222.00 5,772.00
127   21,100.00 - 21,249.99 223.00 5,798.00
128   21,250.00 - 21,399.99 225.00 5,850.00
129   21,400.00 - 21,549.99 227.00 5,902.00
130   21,550.00 - 21,699.99 228.00 5,928.00
131   21,700.00 - 21,849.99 230.00 5,980.00
132   21,850.00 - 21,999.99 231.00 6,006.00
133   22,000.00 - 22,149.99 233.00 6,058.00
134   22,150.00 - 22,299.99 235.00 6,110.00
135   22,300.00 - 22,449.99 236.00 6,136.00
136   22,450.00 - 22,599.99 238.00 6,188.00
137   22,600.00 - 22,749.99 239.00 6,214.00
138   22,750.00 - 22,899.99 241.00 6,266.00
139   22,900.00 - 23,049.99 243.00 6,318.00
140   23,050.00 - 23,199.99 244.00 6,344.00
141   23,200.00 - 23,349.99 246.00 6,396.00
142   23,350.00 - 23,499.99 247.00 6,422.00
143   23,500.00 - 23,649.99 249.00 6,474.00
144   23,650.00 - 23,799.99 250.00 6,500.00
145   23,800.00 - 23,949.99 252.00 6,552.00
146   23,950.00 - 24,099.99 254.00 6,604.00
147   24,100.00 - 24,249.99 255.00 6,630.00
148   24,250.00 - 24,399.99 257.00 6,682.00
149   24,400.00 - 24,549.99 258.00 6,708.00
150   24,550.00 - 24,699.99 260.00 6,760.00
151   24,700.00 - 24,849.99 262.00 6,812.00
152   24,850.00 - 24,999.99 263.00 6,838.00
153   25,000.00 - 25,149.99 265.00 6,890.00
154   25,150.00 - 25,299.99 266.00 6,916.00
155   25,300.00 - 25,449.99 268.00 6,968.00
156   25,450.00 - 25,599.99 269.00 6,994.00
157   25,600.00 - 25,749.99 271.00 7,046.00
158   25,750.00 - 25,899.99 273.00 7,098.00
159   25,900.00 - 26,049.99 274.00 7,124.00
160   26,050.00 - 26,199.99 276.00 7,176.00
161   26,200.00 - 26,349.99 277.00 7,202.00
162   26,350.00 - 26,499.99 279.00 7,254.00
163   26,500.00 - 26,649.99 281.00 7,306.00
164   26,650.00 - 26,799.99 282.00 7,332.00
165   26,800.00 - 26,949.99 284.00 7,384.00
166   26,950.00 - 27,099.99 285.00 7,410.00
167   27,100.00 - 27,249.99 287.00
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of the West Virginia Workers' Compensation Commission.

 (a) (1) On or before the first day of June, two thousand five, the executive director may take such actions as are necessary to establish an employers' mutual insurance company as a domestic, private, nonstock, corporation to:
 (A) Insure employers against liability for injuries and occupational diseases for which their employees may be entitled to receive compensation pursuant to this chapter and federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq.;
 (B) Provide employer's liability insurance incidental to and provided in connection with the insurance specified in paragraph (A) of this subdivision, including coal-workers' pneumoconiosis coverage and employer excess liability coverage as provided in this chapter; and
 (C) Transact other kinds of property and casualty insurance for which the company is otherwise qualified under the provisions of this code.
 (2) The company may not sell, assign or transfer substantial assets or ownership of the company.
 (b) If the executive director establishes a domestic mutual insurance company pursuant to subsection (a) of this section:
 (1) As soon as practical, the company established pursuant to the provisions of this article shall, through a vote of a majority of its provisional board, file its corporate charter and bylaws with the Insurance Commissioner and apply for a license with the Insurance Commissioner to transact insurance in this state. Notwithstanding any other provision of this code, the Insurance Commissioner shall act on the documents within fifteen days of the filing by the company.
 (2) In recognition of the workers' compensation insurance liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial operation of the company, the Legislature authorizes the Insurance Commissioner to review the documentation submitted by the company and to determine the initial capital and surplus requirements of the company, notwithstanding the provisions of section five-b, article three, chapter thirty-three of this code. The company shall furnish the Insurance Commissioner with all information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The Insurance Commissioner shall monitor the economic viability of the company during its initial operation on not less than a monthly basis, until the commissioner, in his or her discretion, determines that monthly reporting is not necessary. In all other respects the company shall comply with the applicable provisions of chapter thirty-three of this code.
 (3) Subject to the provisions of subdivision (4) of this subsection, the Insurance Commissioner may waive other requirements imposed on mutual insurance companies by the provisions of chapter thirty-three of this code the Insurance Commissioner determines are necessary to enable the company to begin insuring employers in this state at the earliest possible date.
 (4) Within forty months of the date of the issuance of its license to transact insurance, the company shall comply with the capital and surplus requirements set forth in subsection (a), section five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment, unless the deadline is extended by the Insurance Commissioner.
 (c) For the duration of its existence, the company is not a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and liabilities of the company, whenever incurred, are the debts, claims, obligations and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer or employee of the state.
 (d) The moneys of the company are not part of the General Revenue Fund of the state. The debts, claims, obligations and liabilities of the company are not a debt of the state or a pledge of the credit of the state.
 (e) The company is not subject to provisions of article nine-a, chapter six of this code; the provisions of article two, chapter six-c of this code; the provisions of chapter twenty-nine-b of this code; the provisions of article three, chapter five-a of this code; the provisions of article six, chapter twenty-nine of this code; or the provisions of chapter twelve of this code.
 (f) If the commission has been terminated, effective upon the termination, private carriers, including the company, are not subject to payment of premium taxes, surcharges and credits contained in article three, chapter thirty-three of this code on premiums received for coverage under this chapter. In lieu thereof, the workers' compensation insurance market is subject to the following:
 (1) (A) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be collected by each private carrier from its policyholders. The surcharge percentage shall be calculated by dividing the previous fiscal year's total premiums collected plus deductible payments by all employers into the portion of the Insurance Commissioner's budget amount attributable to regulation of the private carrier market. This resulting percentage shall be applied to each policyholder's premium payment and deductible payments as a surcharge and remitted to the Insurance Commissioner. Said surcharge shall be remitted within ninety days of receipt of premium payments;
 (B) With respect to fiscal years beginning on and after the first day of July, two thousand eight, in lieu of the surcharge set forth in the preceding paragraph, each private carrier shall collect a surcharge in the amount of five and five-tenths percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied: Provided, That prior to the thirtieth day of June, two-thousand thirteen, and every five years thereafter, the commissioner shall review the percentage surcharge and determine a new percentage as he or she deems necessary.
 (C) The amounts required to be collected under paragraph (B) of this subdivision shall be remitted to the Insurance Commissioner on or before the twenty-fifth day of the month succeeding the end of the quarter in which they are collected, except for the fourth quarter for which the surcharge shall be remitted on or before the first day of March of the succeeding year.
 (2) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be remitted on a quarterly basis by self-insured employers and said percentage shall be calculated by dividing previous year's self-insured payroll in the state into the portion of the Insurance Commissioner's budget amount attributable to regulation of the self-insured employer market. This resulting percentage shall be applied to each self-insured employer's payroll and the resulting amount shall be remitted as a regulatory surcharge by each self-insured employer. The Industrial Council may promulgate a rule for implementation of this section. The company, all other private carriers and all self-insured employers shall furnish the Insurance Commissioner with all required information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The surcharge shall be calculated so as to only defray the costs associated with the administration of this chapter and the funds raised shall not be used for any other purpose except as set forth in subdivision (4) of this subsection;
 (3) (A) Each private carrier shall collect a premiums surcharge from its policyholders as annually determined, by the first day of May of each year, by the Insurance Commissioner to produce forty-five million dollars annually, of each policyholder's periodic premium amount for workers' compensation insurance: Provided, That the surcharge rate on policies issued or renewed on or after the first day of July, two thousand eight shall be nine percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied.
 (B) By the first day of May each year, the self-insured employer community shall be assessed a cumulative total of nine million dollars. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by the Industrial Council. The amount collected pursuant to this subdivision shall be remitted to the Insurance Commissioner for deposit in the Workers' Compensation Debt Reduction Fund created in section five, article two-d of this chapter.
 (4) On or before July 1, 2009, the Insurance Commissioner shall make a one-time lump sum transfer of forty million dollars generated from the surcharges assessed pursuant to paragraph (B), subdivision (1) of this subsection and subdivision (2) of this subsection to the Bureau of Employment Programs' Commissioner for deposit with the Secretary of the Treasury of the United States as a credit of this state in the unemployment trust fund account maintained pursuant to section four, article eight, chapter twenty-one-a of this code.
 (g) The new premiums surcharge imposed by paragraphs (A) and (B), subdivision (3), subsection (f) of this section sunset and are not collectible with respect to workers' compensation insurance premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two-d of this chapter have been retired and that the unfunded liability of the Old Fund has been paid or has been provided for in its entirety, whichever occurs last."
 On the adoption of the amendment to the amendment, Delegate Armstead demanded the yeas and nays, which demand was sustained.
 The yeas and nays having been ordered, they were taken (Roll No. 417), and there were--yeas 32, nays 67, absent and not voting 1, with the yeas and absent and not voting being as follows:
 Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Brown, Canterbury, Carmichael, Cowles, Duke, Ellem, Evans, Hamilton, Ireland, Lane, Louisos, McGeehan, C. Miller, J. Miller, Overington, M. Poling, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
 Absent And Not Voting: Shaver.
 So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
 The Clerk next reported an amendment offered by Delegate Blair on page nine, section twenty-eight, line ten, following the word "amount", by striking out the words "the employer" and inserting in lieu thereof the words "an employer with 20 or more employees".
 On the adoption of the amendment to the amendment, Delegate Blair demanded the yeas and nays, which demand was sustained.
 The yeas and nays having been ordered, they were taken (Roll No. 418), and there were--yeas 32, nays 68, absent and not voting none, with the yeas being as follows:
 Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Duke, Eldridge, Ellem, Evans, Hamilton, Ireland, Lane, Louisos, McGeehan, C. Miller, J. Miller, Overington, Porter, Rodighiero, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
    So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
 The Clerk also reported an amendment offered by Delegate Blair on page thirty-three, following line eighteen, by inserting the following:
"§21A-6-18. Random drug testing for recipients of unemployment compensation.
_(a) The commissioner of the bureau of employment programs shall institute a random drug testing program for all applicants for, or recipients of, state unemployment compensation.
_(b) The commissioner shall deny, or otherwise deem ineligible, any applicant for, or recipient of, state unemployment compensation, if the applicant or recipient twice fails a drug test for illegal consumption of any Schedule I, Schedule II, Schedule III, Schedule IV or Schedule V controlled substances.

_(c) Any applicant or recipient state unemployment compensation shall submit to the commissioner's random drug testing program as a requirement for eligibility or continued receipt of state unemployment compensation. Failure to comply shall be the same as twice failing a drug test.
_(d) Any applicant or recipient of state unemployment compensation who fails an initial drug test shall be required to submit to a second drug test no less than 30 days following the initial drug test, but not to exceed 60 days. The commissioner shall not deny, or otherwise deemed ineligible, any applicant or recipient until the failure of the second drug test.
_(e) Any applicant or recipient of state unemployment compensation denied, or otherwise deemed ineligible, by the commissioner following a failure of an initial random drug test and the mandatory secondary test shall be ineligible to receive, or prohibited from reapplying for, such benefits for a period of two years from the date that commissioner denied an applicants claim or determined the applicant to be ineligible. Any applicant denied or deemed to be ineligible under this section shall submit to a mandatory drug test as part of a re-application for state unemployment compensation.
_(f) The commissioner shall be responsible for ensuring that applicants and recipients chosen for drug testing are selected at random, and not by any other criteria, including, but not limited to, suspicion of drug use, previous drug use or criminal conviction for drug use or possession.
_(g) The commissioner shall be responsible for ensuring the confidentiality of any and all drug test results administered as part of the program. Random drug test results shall only be used for the purpose of denying, or determining eligibility for continued receipt of, state unemployment compensation. At no time shall drug test results be released to any public or private person or entity.
"
 On the adoption of the amendment to the amendment, Delegate Blair demanded the yeas and nays, which demand was sustained.
 The yeas and nays having been ordered, they were taken (Roll No. 420), and there were--yeas 24, nays 76, absent and not voting none, with the yeas being as follows:
 Yeas: Anderson, Armstead, Ashley, Blair, Border, Carmichael, Cowles, Duke, Evans, Ireland, Lane, Louisos, McGeehan, J. Miller, Overington, Porter, Reynolds, Romine, Rowan, Schadler, Schoen, Shott, Tabb and Walters.
    So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
 Delegate Shott moved to amend the amendment on page nine, section one, line fifteen, following the words "February 15", by inserting the words "May 15, August 15 or November 15 ".
 On the adoption of the amendment to the amendment, Delegate Shott demanded the yeas and nays, which demand was sustained.
 The yeas and nays having been ordered, they were taken (Roll No. 421), and there were--yeas 33, nays 67, absent and not voting none, with the yeas being as follows:
 Yeas: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Duke, Evans, Frazier, Hall, Hamilton, Hutchins, Ireland, Lane, Louisos, McGeehan, C. Miller, J. Miller, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner, Walters and Wooton.
    So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.
 Delegate Anderson moved to amend the amendment, on page nine, line eighteen, following the word "decreases" and the period, by inserting the following: "Provided further, That historic art glass manufacturers are exempt from the increase in the threshold wage mandated by this section. For purposes of this section, historic art glass manufacturer means a company with 25 or more employees whose principal business is the manufacture and sale of decorative glass, which has a corporate headquarters and its principal glass manufacturing plant located in West Virginia, and which has been doing business continuously for a period of over 60 years."
 The question before the House being the amendment to the amendment, the same was put and did not prevail.
 The amendment offered by the Committee on Finance was then adopted.
 The bill was then read a third time.
 Delegates Ashley, Campbell, Lane and Schoen requested to be excused from voting on the passage of Com. Sub. for S. B. 246 under the provisions of House Rule 49.
 The Speaker replied that the Delegates were members of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Members from voting.
 The question being on the passage of the bill, the yeas and nays were taken (Roll No. 422), and there were--yeas 71, nays 29, absent and not voting none, with the nays being as follows:
 Nays: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Cowles, Duke, Ellem, Evans, Hamilton, Ireland, Lane, McGeehan, C. Miller, J. Miller, Overington, Porter, Romine, Rowan, Schadler, Schoen, Shott, Sobonya, Sumner and Walters.
 So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 246) passed.
 An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
 Com. Sub. for S. B. 246 - "A Bill to amend and reenact §21A-1-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §21A-1A-5, §21A-1A-6, §21A-1A-7 and §21A- 1A-28 of said code; to amend and reenact §21A-6-1, §21A-6-3 and §21A-6-10 of said code; and to amend and reenact §23-2C-3 of said code, all relating generally to unemployment compensation; requiring establishment of employer violator system; providing for notice and due process; defining certain terms; providing that the maximum weekly benefit rate shall not increase or decrease under certain circumstances; providing for an alternative base wage and authorizing benefits thereunder; requiring notice to employer when employee quits for health reasons; requiring written certification from physician within thirty days; classifying certain conduct as gross misconduct; providing that an employee who voluntarily retires is not eligible for unemployment; requiring the insurance commissioner transfer certain funds for the benefit of the unemployment trust fund; and authorizing the transfer of certain funds by the insurance commissioner."
 Delegate Boggs moved that the bill take effect from its passage.
 On this question, the yeas and nays were taken (Roll No. 423), and there were--yeas 77, nays 23, absent and not voting none, with the nays being as follows:
 Nays: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Carmichael, Cowles, Duke, Ellem, Ireland, Lane, McGeehan, C. Miller, J. Miller, Overington, Porter, Schoen, Shott, Sobonya, Sumner and Walters.
 So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 246) 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.
 Delegate Shaver announced that he was absent when the votes were taken on Roll No 417, and that had he been present, he would have voted "Yea" thereon.
 Delegate Craig asked to be recorded in the Journal as having voted "Yea" on the adoption of the amendment offered by Delegate Anderson.
 Delegate Anderson asked to be recorded in the Journal as having voted "Yea" on the adoption of the amendment offered by the Committee on Finance.
Messages from the Senate

 A message from the Senate, by
 The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
 Com. Sub. for H. B. 2961, Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
 On motion of Delegate Boggs, 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 §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended, be repealed; that §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14- 6 and §18B-14-7 of said code be repealed; that §5-6-4a of said code be amended and reenacted; that §18B-1B-4 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-1D-9; that §18B-2A-1 of said code be amended and reenacted; that §18B-2A-4 of said code be amended and reenacted; that §18B-2B-6 of said code be amended and reenacted; that §18B-4-6 of said code be amended and reenacted; that §18B-5-4 of said code be amended and reenacted; that §18B-10-8 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18; and that §29-22- 18 of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 6. STATE BUILDINGS.
§5-6-4a. Review of real property contracts and agreements; master plan for office space.
 (a) The Secretary of Administration shall provide to the Joint Committee on Government and Finance a copy of a contract or agreement for real property exceeding $1 million and a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property and the agent involved in the sale, at least thirty days prior to any sale, exchange, transfer, purchase, lease purchase, lease or rental of real property, any refundings of lease purchases, leases or rental agreements, any construction of new buildings and any other acquisition or lease of buildings, office space or grounds by any state agency, including the Higher Education Policy Commission but excepting the transactions of the Higher Education Policy Commission, Council for Community and Technical College Education, state institutions of higher education known as Marshall University and West Virginia University and the Division of Highways for state road purposes pursuant to article two-a, chapter seventeen of this code: Provided, That a contract or agreement for the lease purchase, lease or rental of real property by any state agency, where the costs of real property acquisition and improvements are to be financed, in whole or in part, with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.
 (b) For renewals of contracts or agreements required to be reported by the provisions of this section, the Secretary of Administration shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the owner of the property.
 (c) Within thirty days after receipt of the contract, agreement or report, the committee shall meet and review the contract, agreement or report.
 (d) On or before the first day of July, two thousand six, the Secretary of Administration shall conduct an inventory of available office space and office space needs and shall develop and present a master plan for the utilization of office space for state agencies to the Joint Committee on Government and Finance.
 
(e) The governing boards of the state institutions of higher education known as Marshall University and West Virginia University shall provide to the Joint Committee on Government and Finance a copy of any contract or agreement for real property exceeding one million dollars and shall make available to the Joint Committee on Government and Finance upon request a summary of the terms of the contract or agreement, including the name of the owner of the property and the agent involved in the sale.
CHAPTER 18B. HIGHER EDUCATION.

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 and article one-d 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, shall:
 (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 article one-d of this chapter and including specifically those goals and objectives pertaining to the compacts created pursuant to section two, article one-a seven, article one-d of this chapter and to develop and implement the master plan described in section nine of this article five, article one-d of this chapter for the purpose of accomplishing the mandates of this section;
 (2) Develop, oversee and advance the promulgation and implementation jointly with the Council of a financing policy rule for state institutions of higher education in West Virginia under its jurisdiction. The policy rule shall meet the following criteria:
 (A) Provide for an adequate level of education educational 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; Establish standards for evaluating institutions' requests for tuition and fee increases, other than at the state institutions of higher education known as Marshall University and West Virginia University;
 (3) In collaboration with the Council, create a policy leadership structure capable of the following actions:
 (A) Developing, building public consensus around and sustaining attention to a long-range public policy agenda. In developing the agenda, the Commission and Council shall seek input from the Legislature and the Governor and specifically from the State Board of Education and local school districts in order to create the necessary linkages to assure smooth, effective and seamless movement of students through the public education and post-secondary education systems and to ensure that the needs of public school courses and programs can be fulfilled by the graduates produced and the programs offered;
 (B) Ensuring that the governing boards carry out their duty effectively to govern the individual institutions of higher education; and
 (C) Holding the higher education institutions and the higher education systems as a whole accountable for accomplishing their missions and implementing the provisions of the compacts;
 (4) Develop and adopt each institutional compact;
 (5) Review and adopt the annual updates of the institutional compacts;
 (6) Serve as the accountability point to state policymakers:
 (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 progress in achieving state policy priorities and institutional missions pursuant to section two, article one-a seven, article one-d of this chapter;
 (10) Annually report to the Legislature and to the Legislative Oversight Commission on Education Accountability during the January interim meetings meeting period 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, and priorities set forth in section one-a article one and article one-d of this chapter and contained in the Commission's master plan and institutional compacts;
 (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) (B) The Commission's priorities established for new operating and capital investment investments needs pursuant to subdivision (11) of this subsection and the justification for such the priority;
 (D) (C) Recommendations of the Commission for statutory changes needed necessary or expedient to further the achieve state goals and objectives; set forth in article one of this chapter
 (11) Establish a formal process for identifying needs for capital investment capital investment needs and for determining priorities for these investments for consideration by the Governor and the Legislature as part of the appropriation request process pursuant to the provisions of article nineteen of this chapter; 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 project management except the governing boards of Marshall University and West Virginia University are not subject to the provisions of this subdivision as it relates to the state institutions of higher education known as Marshall University and West Virginia University. The guidelines shall provide a process for developing capital projects, including, but not limited to, the notification by an institution to the Commission of any proposed capital project which has the potential to exceed one million dollars in cost. Such a project may not be pursued by an institution without the approval of the Commission. An institution may not participate directly or indirectly with any public or private entity in any capital project which has the potential to exceed one million dollars in cost;
 
(12) Develop standards and evaluate governing board requests for capital project financing in accordance with the provisions of article nineteen of this chapter;
_(13) Ensure that governing boards manage capital projects and facilities needs effectively, including review and approval or disapproval of capital projects, in accordance with the provisions of article nineteen of this chapter;
_
(13) (14) Acquire legal services as that 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) (15) Employ a Chancellor for Higher Education pursuant to section five of this article;
 (15) (16) 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) (17) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
 (17) (18) 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) (19) 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 shall 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) (20) 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) (21) 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 by:
 (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 education 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 a student 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 that are consistent with sound academic policy;
 (24) Establish and implement policies and procedures to ensure that students a student 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 a student 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 a student who have has 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 he or she has the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate associate's 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 and article one-d of this chapter;
 (28) Develop, establish Promulgate and implement a rule for higher education governing boards and institutions to follow when considering capital projects pursuant to the provisions of article nineteen of this chapter; The guidelines shall 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 an appropriation request that reflects recommended appropriations from for the Commission and the institutions under its jurisdiction. The Commission shall submit as part of its budget proposal appropriation request the separate recommended appropriations it appropriation request 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 may 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 providing 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 June 30, 2000, 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 state 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, Promulgate and implement a policy rule 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;
 (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;
 
(37) (36) 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; and
 (38) (37) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or otherwise dispose of all or part of any real property which it may own that it owns, in accordance with the provisions of article nineteen of this chapter. either by contract or at public auction, and to retain the proceeds of any such sale or lease: Provided, That:
 
(A) The Commission may not sell, lease, convey or otherwise dispose of any real property without first:
 
(i) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
 
(ii) Holding a public hearing on the issue in the county in which the real property is located; and
 
(iii) Providing notice to the Joint Committee on Government and Finance; and
 
(B) Any proceeds from the sale, lease, conveyance or other disposal of real property that is used jointly by institutions or for statewide programs under the jurisdiction of the Commission or the Council shall be transferred to the General Revenue Fund of the state.
 (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 of the system;
 (3) Development and implementation of institutional mission definitions, including use of incentive funds to influence institutional behavior in ways that are consistent with public priorities;
 (4) Academic program review and approval for institutions under its jurisdiction, including the use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes. The Commission's authority to review and approve academic programs for either the state institution of higher education known as Marshall University or West Virginia University is limited to programs that are proposed to be offered at a new location not presently served by that institution;
 (5) Distribution of funds appropriated to the Commission, including incentive and performance-based funding;
 (6) Administration of state and federal student aid programs under the supervision of the Vice Chancellor for Administration, including promulgation of any rules necessary to administer those programs;
 (7) Serving as the agent to receive and disburse public funds when a governmental entity requires designation of a statewide higher education agency for this purpose;
 (8) Development, establishment and implementation of Developing, establishing and implementing information, assessment and accountability systems, including maintenance of maintaining statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;
 (9) Jointly with the Council, developing, establishing promulgating and implementing policies rules 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 required by section eleven of this article;
 (10) Development, implementation and oversight of Developing, implementing and overseeing statewide and regionwide regional 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 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 any other powers and duties as may be necessary or expedient to accomplish the purposes of this article.
 (d) The Commission is authorized to may withdraw specific powers of any a governing board of an institution under its jurisdiction for a period not to exceed two years, if the Commission makes a determination that any of the following conditions exist:
 (1) The governing board has failed for two consecutive years to develop or implement an institutional compact as required in article one one-d 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.
 The period of withdrawal of Specific powers of a governing board may not be withdrawn for a period exceed exceeding two years. During which that time the Commission is authorized to may take all steps necessary to reestablish the conditions for restoration of restore sound, stable and responsible institutional governance.
ARTICLE 1D. HIGHER EDUCATION ACCOUNTABILITY.
§18B-1D-9. Commission, council and institutional governing board training and development; training and development requirements, applicability and exceptions.

  (a) The commission and council, either jointly or separately, shall coordinate periodic training and development opportunities for members of the commission, council and institutional governing boards as provided in this section.
  (b) Within six months of beginning service on the commission, council or a governing board, each new member shall complete at least three hours of training and development. The training and development shall address the following topics:
  (1) State goals, objectives and priorities for higher education;
  (2) The accountability system for higher education set forth in this article;
  (3) The general powers and duties of members; and
  (4) Ethical considerations arising from board membership.
  (c) With the exception of the ex officio members of the commission and the council and the student member of a governing board, each member shall complete at least six hours of training and development related to his or her duties within two years of beginning service and within every two years of service thereafter.
  (d) By July 31 each year, the chair of the commission, council and each governing board shall certify to the commission or council, as appropriate, the number of hours of training and development that each member received during the preceding fiscal year.
  (e) If the certification indicates that a board member has not completed the training and development required by this section, the commission or council, as appropriate, shall send a notice to the Governor and the Secretary of State or to the institutional appointing entity that the board member is disqualified from continued service notwithstanding the provisions of sections five and six, article six, chapter six of this code. The commission or council, as appropriate, shall request the Governor or appointing entity to appoint a replacement for that board member.
  (f) By September 30 each year, the commission and council shall report to the Legislative Oversight Commission on Education Accountability on the training and development that members of the commission and the council and the governing boards under their respective jurisdictions have received during the preceding fiscal year and shall include this information in the institutional and statewide report cards provided in section eight of this article.
  (g) As used in this section, 'member' means all members of the commission, council and the governing boards unless a specific exception is provided in this section.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-1. Findings; composition of boards; terms and qualifications of members; vacancies; eligibility for reappointment.

  
(a) Findings. --
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The Legislature finds that the State of West Virginia is served best when the membership of each governing board includes the following:
__(1) The academic expertise and institutional experience of faculty members and a student of the institution governed by the board;
__(2) The technical or professional expertise and institutional experience of a classified employee of the institution governed by the board;
__(3) An awareness and understanding of the issues facing the institution governed by the board; and
__(4) The diverse perspectives that arise from a membership that is balanced in terms of gender and varied in terms of race and ethnic heritage.

  (a) (b) Boards of governors established. --
  A board of governors is continued at each of the following institutions: Bluefield State College, Blue Ridge Community and Technical College, The Community and Technical College at West Virginia University Institute of Technology, Concord University, Eastern West Virginia Community and Technical College, Fairmont State University, Glenville State College, Marshall Community and Technical College, Marshall University, New River Community and Technical College, Pierpont Community and Technical College, Shepherd University, Southern West Virginia Community and Technical College, West Liberty State college University, West Virginia Northern Community and Technical College, the West Virginia School of Osteopathic Medicine, West Virginia State Community and Technical College, West Virginia State University, and West Virginia University, and West Virginia University at Parkersburg.
  (b) Independent community and technical colleges established. --
  
Effective July 1, 2008, the board of advisors is abolished and A board of governors is established for Marshall Community and Technical College; Pierpont Community and Technical College, formerly a division of Fairmont State University; The Community and Technical College at West Virginia University Institute of Technology; West Virginia State Community and Technical College; and West Virginia University at Parkersburg.
  
In making the initial appointments to these boards of governors, the Governor may appoint those persons who are lay members of the boards of advisors by June 30, 2008.
  
(B) At the end of the initial term, and thereafter
  (c) Board Membership. --
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(1) An appointment to fill a vacancy on the board or reappointment of a member who is eligible to serve an additional term is made in accordance with the provisions of this section.
  (c) (2) The institutional boards board of governors for Marshall University and West Virginia University consist consists of sixteen persons. The board of governors for West Virginia University consists of seventeen persons. The boards of governors of the other state institutions of higher education consist of twelve persons.
  (d) (3) Each board of governors includes the following members:
  (1) (A) A full-time member of the faculty with the rank of instructor or above duly elected by the faculty of the respective institution;
  (2) (B) A member of the student body in good academic standing, enrolled for college credit work and duly elected by the student body of the respective institution; and
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(3) (C) A member from the institutional classified employees duly elected by the classified employees of the respective institution; and
  
(4) For the institutional board of governors at Marshall University, thirteen lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section;
  (5) For the institutional board of governors at West Virginia University, twelve lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section, and additionally:
  (A) The chairperson of the board of Visitors of West Virginia University Institute of Technology;
  (B) A full-time faculty member representing the extension service at the institution or a full- time faculty member representing the health sciences, selected by the faculty senate.
  (6) For each institutional board of governors of the other state institutions of higher education, nine lay members appointed by the Governor, by and with the advice and consent of the Senate, pursuant to this section.
  (e) (A) Of the nine members appointed by the Governor, no more than five may be of the same political party. Of the thirteen members appointed by the Governor to the governing board of Marshall University, no more than eight may be of the same political party. Of the twelve members appointed by the Governor to the governing board of West Virginia University, no more than seven may be of the same political party.
  (B) Of the nine members appointed by the Governor, at least six five shall be residents of the state. Of the thirteen members appointed by the Governor to the governing board of Marshall University, at least eight shall be residents of the state. Of the twelve members appointed by the Governor to the governing board of West Virginia University, at least eight seven shall be residents of the state.
  (7) In making lay appointments, the Governor shall consider the institutional mission and membership characteristics including the following:
__(A) The need for individual skills, knowledge and experience relevant to governing the institution;
__(B) The need for awareness and understanding of institutional problems and priorities, including those related to research, teaching and outreach;
__(C) The value of gender, racial and ethnic diversity; and
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(D) The value of achieving balance in gender and diversity in the racial and ethnic characteristics of the lay membership of each board.
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(f)(d) Board member terms. --
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(1) The student member serves for a term of one year. Each term begins on the first day of July.
  (g) The (2) The faculty member serves for a term of two years. Each term begins on the first day of July. Faculty members are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
  (h)(3) The member representing classified employees serves for a term of two years. Each term begins on the first day of July. Members representing classified employees are eligible to succeed themselves for three additional terms, not to exceed a total of eight consecutive years.
  (i)(4) The appointed lay citizen members serve terms of up to four years each and are eligible to succeed themselves for no more than one additional term.
  (j)(5) A vacancy in an unexpired term of a member shall be filled for the unexpired term within thirty days of the occurrence of the vacancy in the same manner as the original appointment or election. Except in the case of a vacancy, all elections shall be are held and all appointments shall be are made no later than the thirtieth day of June 30 preceding the commencement of the term. Each board of governors shall elect one of its appointed lay members to be chairperson in June of each year. except for the fiscal year beginning July 1, 2008, only, when the board shall elect the chairperson in July A member may not serve as chairperson for more than four consecutive years.
  (k)(6) The appointed members of the institutional boards of governors serve staggered terms of up to four years except that four of the initial appointments to the governing boards of community and technical colleges which become that became independent July 1, 2008, are for terms of two years and five of the initial appointments are for terms of four years.
  (l)(e) Board member eligibility, expenses. --
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(1) A person is ineligible for appointment to membership on a board of governors of a state institution of higher education under the following conditions:
  (A) For a baccalaureate institution or university, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office or public employment under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, students or the superintendent of a county board of education from being members of the governing boards.
  (B) For a community and technical college, a person is ineligible for appointment who is an officer, employee or member of any other board of governors; a member of a board of visitors of any public institution of higher education; an employee of any institution of higher education; an officer or member of any political party executive committee; the holder of any other public office, other than an elected county office, or public employment, other than employment by the county board of education, under the government of this state or any of its political subdivisions; an employee of any affiliated research corporation created pursuant to article twelve of this chapter; an employee of any affiliated foundation organized and operated in support of one or more state institutions of higher education; or a member of the council or commission. This subsection does not prevent the representative from the faculty, classified employees, or students, or chairpersons of the boards of advisors from being members of the governing boards.
  (m)(2) Before exercising any authority or performing any duties as a member of a governing board, each member shall qualify as such by taking and subscribing to the oath of office prescribed by Section five, Article IV of the Constitution of West Virginia and the certificate thereof shall be filed with the Secretary of State.
  (n)(3) A member of a governing board appointed by the Governor may not be removed from office by the Governor except for official misconduct, incompetence, neglect of duty or gross immorality and then only in the manner prescribed by law for the removal of the state elective officers by the Governor.
__(4) The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses.
  (o) (5) The president of the institution shall make available resources of the institution for conducting the business of its board of governors. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
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The members of the board of governors serve without compensation, but are reimbursed for all reasonable and necessary expenses actually incurred in the performance of official duties under this article upon presentation of an itemized sworn statement of expenses. All expenses incurred by the board of governors and the institution under this section are paid from funds allocated to the institution for that purpose.
ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.
§18B-2A-4. Powers and duties of governing boards generally.
  Each governing board separately has the following powers and duties shall:
  (a) Determine, control, supervise and manage the financial, business and education policies and affairs of the state institution of higher education under its jurisdiction;
  (b) Develop a master plan for the institution under its jurisdiction.
  (1) The ultimate responsibility for developing and updating the each master plans plan at the institutional level resides with the board of governors, but the ultimate responsibility for approving the final version of the each institutional master plans plan, including periodic updates, resides with the Commission or Council, as appropriate.
  (2) Each institutional master plan shall include, but not be limited to, the following:
  (A) A detailed demonstration of how the institutional master plan will be used to meet the goals and objectives of the institutional compact;
  (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 a plan to assure that the needs of the institution's area of responsibility for a quality system of higher education are addressed;
  (C) Document the involvement of Documentation showing how the governing board involved 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 fewer than three nor more than five years and shall be revised periodically as necessary, including the addition or deletion of adding or deleting degree programs as the governing board in the its discretion of the appropriate governing board, are determines is necessary;
__(c) Develop a ten-year campus development plan in accordance with article nineteen of this chapter;
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(c) (d) Prescribe for the institution, in accordance with its master plan and compact, specific functions and responsibilities to achieve the goals, objectives and priorities established in articles one and one-d of this chapter to meet the higher education needs of its area of responsibility and to avoid unnecessary duplication;
  (d) (e) Direct the preparation of a budget an appropriation request for the institution under its jurisdiction, which relates directly to missions, goals and projections as found in the institutional master plan and the institutional compact;
  (e) (f) Consider, revise and submit to the Commission or Council, as appropriate, a budget an appropriation request on behalf of the institution under its jurisdiction;
  (f) (g) Review, at least every five years, all academic programs offered at the institution under its jurisdiction. The review shall address the viability, adequacy and necessity of the programs in relation to established state goals, objectives and priorities, the 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 institution 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) (h) Ensure that the sequence and availability of academic programs and courses offered by the institution under its 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 the institution under its jurisdiction is transferable to any other state institution of higher education for credit with the grade earned;
  (h) (i) Subject to the provisions of article one-b of this chapter, 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 use one nationally recognized teacher education program accreditation standard as the appropriate standard for program evaluation;
  (i) (j) Use Involve faculty, students and classified employees in institutional-level planning and decision making when those groups are affected;
  (j) (k) Subject to the provisions of federal law and pursuant to the provisions of article articles seven, eight and 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 institution under its jurisdiction;
  (k) (l) Administer a system for hearing employee grievances and appeals. Notwithstanding any other provision of this code to the contrary, the procedure established in article two, chapter six- c of this code is the exclusive mechanism for hearing prospective employee grievances and appeals;
  (l) (m) Solicit and use or expend voluntary support, including financial contributions and support services, for the institution under its jurisdiction;
  (m) (n) Appoint a president for the institution under its jurisdiction subject to the provisions of section six, article one-b of this chapter;
  (n) (o) Conduct written performance evaluations of the president pursuant to section six, article one-b of this chapter;
  (o) (p) Employ all faculty and staff at the institution under its jurisdiction. The employees operate under the supervision of the president, but are employees of the governing board;
  (p) (q) 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 established state goals, objectives, and priorities, and goals stated in its master plan and institutional compact; any data or reports requested by the Commission or Council, as appropriate, within the time frame set by the Commission or Council;
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(q) (r) 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 state institutions of higher education or at off-campus locations in the institution's responsibility district. To accomplish this goal, the boards may share resources among the various groups in the community;
  (r) (s) Provide and transfer funding and property to certain corporations pursuant to section ten, article twelve of this chapter;
  (s) (t) 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 master plan and institutional compact. If a governing board elects to delegate any of its power and control under the provisions of this subsection, it shall enter the delegation in the minutes of the meeting when the decision was made and shall notify the Commission or Council, as appropriate. Any delegation of power and control may be rescinded by the appropriate governing board, 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) (u) Unless changed by the Commission or the Council, as appropriate, continue to abide by existing rules setting forth standards for acceptance of advanced placement credit for the institution under its jurisdiction. Individual departments at a state institution of higher education may, upon approval of the institutional faculty senate, require higher scores on the advanced placement test than scores designated by the governing board when the credit is to be used toward meeting a requirement of the core curriculum for a major in that department;
  (u) (v) 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 appropriated and nonappropriated revenue and appropriated state funds at the institution under its jurisdiction that ensures that properly submitted requests for payment be paid on or before the due date but, in any event, within fifteen days of receipt in the State Auditor's office;
  (v) (w) In consultation with the appropriate chancellor and the Secretary of the Department of Administration, 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 institution under its jurisdiction. Each personnel transaction shall be accompanied by the appropriate standardized system or forms, which shall be submitted to the respective governing board and the Department of Finance and Administration;
  (w) (x) Notwithstanding any other provision of this code to the contrary, transfer funds from any account specifically appropriated for its use to any corresponding line item in a general revenue account at any agency or institution under its jurisdiction as long as such the transferred funds are used for the purposes appropriated;
  (x) (y) Transfer funds from appropriated special revenue accounts for capital improvements under its jurisdiction to special revenue accounts at agencies or institutions under its jurisdiction as long as such the transferred funds are used for the purposes appropriated in accordance with the provisions of article nineteen of this chapter;
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(y) (z) Notwithstanding any other provision of this code to the contrary, acquire legal services that are necessary, including representation of the governing board, its institution, 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 board may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law; and
  (z) (aa) Contract and pay for disability insurance for a class or classes of employees at a state institution of higher education under its jurisdiction.
ARTICLE 2B. WEST VIRGINIA COUNCIL FOR COMMUNITY AND TECHNICAL COLLEGE EDUCATION.

§18B-2B-6. Powers and duties of the Council.
  (a) The Council is the sole agency responsible for administration of vocational-technical-occupational education and community and technical college education in the state. The Council has jurisdiction and authority over the community and technical colleges and the statewide network of independently accredited community and technical colleges as a whole, including community and technical college education programs as defined in section two, article one of this chapter.
  (b) The Council shall propose rules pursuant to section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code to implement the provisions of this section and applicable provisions of article one-d of this chapter. (1) To implement the provisions of article one-d of this chapter relevant to community and technical colleges, the Council may propose rules jointly with the Commission or separately and may choose to address all components of the accountability system in a single rule or may propose additional rules to cover specific components.
  (2) The rules pertaining to financing policy and benchmarks and indicators required by this section shall be filed with the Legislative Oversight Commission on Education Accountability by the first day of October, two thousand eight. Nothing in this subsection requires other rules of 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. and
  
(3) The Legislature finds that an emergency exists and, therefore, the Council shall propose an emergency rule or rules to implement the provisions of this section relating to the financing policy and benchmarks and indicators in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code by the first day of October, two thousand eight. The emergency rule or rules may not be implemented without prior approval of the Legislative Oversight Commission on Education Accountability.
  (c) The Council has the following powers and duties relating to the authority established in subsection (a) of this section:
  (1) Develop, oversee and advance the public policy agenda for community and technical college education for the purpose of accomplishing the mandates of this section, including, but not limited to, the following:
  (A) Achieving the goals and objectives established in articles one and one-d of this chapter;
  (B) Addressing the goals and objectives contained in the institutional compacts created pursuant to section seven, article one-d of this chapter; and
  (C) Developing and implementing the master plan described in section five, article one-d of this chapter;
  (2) Propose a legislative rule pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code to develop and implement a financing policy for community and technical college education in West Virginia. The rule shall meet the following criteria:
  (A) Provide for an adequate level of education educational 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) Establish a plan for strategic funding to strengthen capacity for support of community and technical college education; and
  (D) Establish a plan that measures progress and provides performance-based funding to institutions which make significant progress in the following specific areas:
  (i) Achieving the objectives and priorities established in article one-d of this chapter;
  (ii) Serving targeted populations, especially working age adults twenty-five years of age and over;
  (iii) Providing access to high-cost, high-demand technical programs in every region of the state;
  (iv) Increasing the percentage of functionally literate adults in every region of the state; and
  (v) Providing high-quality community and technical college education services to residents of every region of the state; and
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(E) Establish standards for evaluating institutions' requests for tuition and fee increases;
  (3) Create a policy leadership structure relating to community and technical college education 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 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 of the institutions under the Council's jurisdiction carry out their duty effectively to govern the individual institutions of higher education; and
  (C) Holding each community and technical college and the statewide network of independently accredited community and technical colleges as a whole accountable for accomplishing their missions and achieving the goals and objectives established in articles one, one- d and three-c of this chapter;
  (4) Develop for inclusion in the statewide public agenda, a plan for raising education attainment, increasing adult literacy, promoting workforce and economic development and ensuring access to advanced education for the citizens of West Virginia;
  (5) Provide statewide leadership, coordination, support and technical assistance to the community and technical colleges and to provide a focal point for visible and effective advocacy for their work and for the public policy agendas approved by the Commission and Council.
  (6) Review and adopt annually all institutional compacts for the community and technical colleges pursuant to the provisions of section seven, article one-d of this chapter;
  (7) Fulfill the mandates of the accountability system established in article one-d of this chapter and report on progress in meeting established goals, objectives and priorities to the elected leadership of the state;
  (8) Propose a legislative rule pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code to establish benchmarks and indicators in accordance with the provisions of this subsection;
  (9) Establish and implement the benchmarks and performance indicators necessary to measure institutional progress:
  (A) In meeting state goals, objectives and priorities established in articles one and one-d of this chapter;
  (B) In carrying out institutional missions; and
  (C) In meeting the essential conditions established in article three-c of this chapter;
  (10) Collect and analyze data relating to the performance of community and technical colleges in every region of West Virginia and report periodically or as directed to the Legislative Oversight Commission on Education Accountability on the progress in meeting the goals and objectives established in articles one and one-d of this chapter.
  Additionally, the Council shall report annually during the January interim meetings meeting period 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 annual report shall address at least the following:
  (A) The performance of the community and technical college network 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 network as a whole in meeting the goals, and objectives and priorities established in articles one and one-d of this chapter and contained in the Council's master plan and institution compacts;
  (B) The priorities established for capital investment needs pursuant to subdivision (11) of this subsection of the Council for new operating and capital investments and the justification for such the priority; and
  (C) Recommendations of the Council for statutory changes necessary or expedient to achieve established state goals and objectives;
  (11) In accordance with the provisions of article nineteen of this chapter:
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(11) (A) Establish a formal process for identifying needs for capital investments and for determining priorities for these investments needs for consideration by the Governor and the Legislature as part of the appropriation request process;
__(B) Ensure that the governing boards adhere to the capital construction and maintenance provisions of article nineteen of this chapter; and
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(C) Notwithstanding any other provision of this code to the contrary, sell, lease, convey or otherwise dispose of all or part of any real property that it owns;
Notwithstanding the language in subdivision eleven, subsection a, section four, article one-b of this chapter, the Commission is not a part of the process for identifying needs for capital investments for the statewide network of independently accredited community and technical colleges.
  (12) Draw upon the expertise available within the Governor's Workforce Investment Office and the West Virginia Development Office as a resource in the area of workforce development and training;
  (13) Acquire legal services that are considered necessary, including representation of the Council, 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 Council 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 community and technical college education pursuant to section three of this article;
  (15) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Council consistent with the provisions of section two, article four of this chapter;
  (16) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Council who are employed solely by the Council;
  (17) Provide suitable offices in Charleston for the chancellor and other staff;
  (18) Approve the total compensation package from all sources for presidents of community and technical colleges, as proposed by the governing boards. The governing boards must shall obtain approval from the Council of the total compensation package both when presidents are employed initially and subsequently when any change is made in the amount of the total compensation package;
  (19) 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 that is consistent with sound academic policy;
  (20) Establish and implement policies and programs, jointly with the community and technical colleges, 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 associate's degree or a bachelor's degree at a state institution of higher education;
  (21) Seek out and attend regional and national meetings and forums on education and workforce development-related topics, as that Council members consider critical for the performance of their duties. The Council shall keep abreast of national and regional community and technical college education trends and policies to aid members in developing the policies for this state that meet the education goals and objectives established in articles one and one-d of this chapter;
  (22) Assess community and technical colleges for the payment of expenses of the Council or for the funding of statewide services, obligations or initiatives related specifically to the provision of community and technical college education;
  (23) Promulgate rules allocating reimbursement of appropriations, if made available by the Legislature, to community and technical colleges for qualifying noncapital expenditures incurred in the provision of services to students with physical, learning or severe sensory disabilities;
  (24) Assume the prior authority of the Commission in examining and approving tuition and fee increase proposals submitted by community and technical college governing boards as provided in section one, article ten of this chapter. Approve tuition and fee increases.
  (25) Develop and submit to the Commission, a single budget appropriation request for community and technical college education that reflects recommended appropriations for community and technical colleges and that meets the following conditions:
  (A) Incorporates the provisions of the financing rule mandated by this section to measure and provide performance funding to institutions which that achieve or make significant progress toward achieving established state goals, objectives and priorities;
  (B) Considers the progress of each institution toward meeting the essential conditions set forth in section three, article three-c of this chapter, including independent accreditation; and
  (C) Considers the progress of each institution toward meeting the goals, objectives and priorities established in article one-d of this chapter and its approved institutional compact.
  (26) Administer and distribute the independently accredited community and technical college development account;
  (27) Establish a plan of strategic funding to strengthen capacity for support and assure delivery of high quality community and technical college education in all regions of the state;
  (28) Foster coordination among all state-level, regional and local entities providing post-secondary vocational education or workforce development and coordinate all public institutions and entities that have a community and technical college mission;
  (29) Assume the principal responsibility for oversight of those community and technical colleges seeking independent accreditation and for holding governing boards accountable for meeting the essential conditions pursuant to article three-c of this chapter;
  (30) Advise and consent in the appointment of the presidents of the community and technical colleges pursuant to section six, article one-b of this chapter. The role of the Council in approving a president is to assure through personal interview that the person selected understands and is committed to achieving the goals and objectives established in the institutional compact and in articles one, one-d and three-c of this chapter;
  (31) Provide a single, statewide link for current and prospective employers whose needs extend beyond one locality;
  (32) Provide a mechanism capable of serving two or more institutions to facilitate joint problem solving in areas including, but not limited to, the following:
  (A) Defining faculty roles and personnel policies;
  (B) Delivering high-cost technical education programs across the state;
  (C) Providing one-stop service for workforce training to be delivered by multiple institutions; and
  (D) Providing opportunities for resource-sharing and collaborative ventures;
  (33) Provide support and technical assistance to develop, coordinate and deliver effective and efficient community and technical college education programs and services in all regions of the state;
  (34) Assist the community and technical colleges in establishing and promoting links with business, industry and labor in the geographic areas for which each community and technical college is responsible;
  (35) Develop alliances among the community and technical colleges for resource sharing, joint development of courses and courseware, and sharing of expertise and staff development;
  (36) Serve aggressively as an advocate for development of a seamless curriculum;
  (37) Cooperate with all providers of education services in the state to remove barriers relating to a seamless system of public and higher education and to transfer and articulation between and among community and technical colleges, state colleges and universities and public education, preschool through grade twelve;
  (38) Encourage the most efficient use of available resources;
  (39) Coordinate with the Commission in informing public school students, their parents and teachers of the academic preparation that students need in order to be prepared adequately to succeed in their selected fields of study and career plans, including presentation of academic career fairs;
  (40) Jointly with the Commission, approve and implement a uniform standard, as developed by the chancellors, 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 the governing boards shall communicate to the State Board of Education and the State Superintendent of Schools;
  (41) Develop and implement strategies and curriculum for providing developmental education which shall be applied by any state institution of higher education providing developmental education.
  (42) Develop a statewide system of community and technical college programs and services in every region of West Virginia for competency-based certification of knowledge and skills, including a statewide competency-based associate degree program;
  (43) Review and approve all institutional master plans for the community and technical colleges pursuant to section four, article two-a of this chapter;
  (44) Propose rules for promulgation pursuant to subsection (b) of this section and article three-a, chapter twenty-nine-a of this code that are necessary or expedient for the effective and efficient performance of community and technical colleges in the state;
  (45) In its sole discretion, transfer any rule under its jurisdiction, other than a legislative rule, to the jurisdiction of the governing boards, who which may rescind, revise, alter or amend any rule transferred pursuant to rules adopted by the Council, and provide technical assistance to the institutions under its jurisdiction to aid them in promulgating rules;
  (46) Develop for inclusion in the higher education report card, as defined in section eight, article one-d of this chapter, a separate section on community and technical colleges. This section shall include, but is not limited to, evaluation of the institutions based upon the benchmarks and indicators developed in subdivision (9) of this subsection;
  (47) Facilitate continuation of the Advantage Valley Community College Network under the leadership and direction of Marshall Community and Technical College;
  (48) Initiate and facilitate creation of other regional networks of affiliated community and technical colleges that the Council finds to be appropriate and in the best interests of the citizens to be served;
  (49) Develop with the State Board of Education plans for secondary and post-secondary vocational-technical-occupational and adult basic education, including, but not limited to, the following:
  (A) Policies to strengthen vocational-technical-occupational and adult basic education; and
  (B) Programs and methods to assist in the improvement, modernization and expanded delivery of vocational- technical-occupational and adult basic education programs;
  (50) Distribute federal vocational education funding provided under the Carl D. Perkins Vocational and Technical Education Act of 1998, PL 105-332, with an emphasis on distributing financial assistance among secondary and post-secondary vocational- technical-occupational and adult basic education programs to help meet the public policy agenda.
  In distributing funds the Council shall use the following guidelines:
  (A) The State Board of Education shall continue to be the fiscal agent for federal vocational education funding;
  (B) The percentage split between the State Board of Education and the Council shall be determined by rule promulgated by the Council under the provisions of article three-a, chapter twenty-nine-a of this code; The Council shall first obtain the approval of the State Board of Education before proposing a rule;
  (51) Collaborate, cooperate and interact with all secondary and post-secondary vocational-technical-occupational and adult basic education programs in the state, including the programs assisted under the federal Carl D. Perkins Vocational and Technical Education Act of 1998, PL 105-332, and the Workforce Investment Act of 1998, to promote the development of seamless curriculum and the elimination of duplicative programs;
  (52) Coordinate the delivery of vocational-technical occupational and adult basic education in a manner designed to make the most effective use of available public funds to increase accessibility for students;
  (53) Analyze and report to the State Board of Education on the distribution of spending for vocational-technical-occupational and adult basic education in the state and on the availability of vocational-technical-occupational and adult basic education activities and services within the state;
  (54) Promote the delivery of vocational-technical-occupational education, adult basic education and community and technical college education programs in the state which that emphasize the involvement of business, industry and labor organizations;
  (55) Promote public participation in the provision of vocational-technical-occupational education, adult basic education and community and technical education at the local level, emphasizing programs which involve the participation of local employers and labor organizations;
  (56) Promote equal access to quality vocational-technical- occupational education, adult basic education and community and technical college education programs to handicapped and disadvantaged individuals, adults in need of training and retraining, single parents, homemakers, participants in programs designed to eliminate sexual bias and stereotyping and criminal offenders serving in correctional institutions;
  (57) Meet annually between the months of October and December with the Advisory Committee of Community and Technical College Presidents created pursuant to section eight of this article to discuss those matters relating to community and technical college education in which advisory committee members or the Council may have an interest;
  (58) Accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article;
  (59) Assume the powers set out in section nine of this article. The rules previously promulgated by the State College System Board of Directors pursuant to that section and transferred to the Commission are hereby transferred to the Council and shall continue in effect until rescinded, revised, altered or amended by the Council;
  (60) Pursuant to the provisions of subsection (b) of this section and article three-a, chapter twenty-nine-a of this code, promulgate a uniform joint legislative rule with the Commission for the purpose of standardizing, as much as possible, the administration of personnel matters among the institutions of higher education;
  (61) Determine when a joint rule among the governing boards of the community and technical colleges is necessary or required by law and, in those instances and in consultation with the governing boards, promulgate the joint rule;
  (62) Promulgate a joint rule with the Commission establishing tuition and fee policy for all institutions of higher education. 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) Any other policies the Commission and Council consider appropriate;
  
(63) (62) In cooperation with the West Virginia Division of Highways, study a method for increasing the signage signifying community and technical college locations along the state interstate highways, and report to the Legislative Oversight Commission on Education Accountability regarding any recommendations and required costs; and
  (64) (63) Promulgate and implement a policy rule jointly with the Commission whereby any 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.
  (d) In addition to the powers and duties listed in subsections (a), (b) and (c) of this section, the Council has the following general powers and duties related to its role in developing, articulating and overseeing the implementation of the public policy agenda for community and technical colleges:
  (1) Planning and policy leadership including a distinct and visible role in setting the state's policy agenda for the delivery of community and technical college education and in serving as an agent of change;
  (2) Policy analysis and research focused on issues affecting the community and technical college network as a whole or a geographical region thereof of the network;
  (3) Development and implementation of each community and technical college mission definition including use of incentive and performance funds to influence institutional behavior in ways that are consistent with achieving established state goals, objectives and priorities;
  (4) Academic program review and approval for the institutions under its jurisdiction, including the use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes;
  (5) Development of budget and allocation of resources for institutions delivering community and technical college education, including reviewing and approving institutional operating and capital budgets and distributing incentive and performance-based funding;
  (6) Acting as the agent to receive and disburse public funds related to community and technical college education when a governmental entity requires designation of a statewide higher education agency for this purpose;
  (7) Development, establishment and implementation of information, assessment and internal accountability systems, including maintenance of statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators for community and technical colleges;
  (8) Jointly with the Commission, development, establishment and implementation of policies for licensing and oversight of both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs;
  (9) Development, implementation and oversight of statewide and regionwide regional projects and initiatives related specifically to providing community and technical college education such as those using funds from federal categorical programs or those using incentive and performance-based funding from any source; and
  (10) Quality assurance that intersects with all other duties of the Council particularly in the areas of planning, policy analysis, program review and approval, budgeting and information and accountability systems.
  (e) The Council may withdraw specific powers of a governing board under its jurisdiction for a period not to exceed two years if the Council makes a determination that any of the following conditions exist:
  (1) The governing board has failed for two consecutive years to develop an institutional compact as required in section seven, article one-d of this chapter;
  (2) The Council 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 Council, severely limit the capacity of the board of governors to carry out its duties and responsibilities.
  The period of withdrawal of specific powers may not exceed two years during which time the Council is authorized to may take steps necessary to reestablish the conditions for restoration of sound, stable and responsible institutional governance.
  (f) In addition to the powers and duties provided for in subsections (a), (b), (c) and (d) of this section and any others assigned to it by law, the Council has those powers and duties necessary or expedient to accomplish the purposes of this article. and
  (g) When the Council and Commission, each, is required to consent, cooperate, collaborate or provide input into the actions of the other the following conditions apply:
  (1) The body acting first shall convey its decision in the matter to the other body with a request for concurrence in the action;
  (2) The Commission or the Council, as the receiving body, shall place the proposal on its agenda and shall take final action within sixty days of the date when the request for concurrence is received; and
  (3) If the receiving body fails to take final action within sixty days, the original proposal stands and is binding on both the Commission and the Council.
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-6. Regulation of parking, speed flow of traffic on campus roads and driveways; civil and criminal penalties; disposition of revenue.

  
(a) The governing boards are hereby authorized to construct, maintain and operate automobile parking facilities or areas upon any premises owned or leased at any state institution of higher education under their jurisdiction for use by students, faculty, staff and visitors. The governing boards may charge fees for use of the parking facilities or areas under their control. All moneys collected for the use of the parking facilities or areas shall be paid to the credit of the state institution of higher education at which the fees were charged into a special fund in the State Treasury. The moneys in the fund are used first to pay the cost of maintaining and operating the parking facilities or areas.
  
Any excess not needed for this purpose may be used for the acquisition of property by lease or purchase and the construction thereon of additional parking facilities or areas. Any money in the fund not needed immediately for the acquisition, construction, maintenance or operation of the parking facilities or areas may be temporarily invested by the governing boards with the West Virginia Investment Management Board to the credit of the institution by which the fees were charged.
  
(b) (a) Notwithstanding any other motor vehicle or traffic law or regulation to the contrary, a governing board may regulate and control at any state institution under its jurisdiction the speed, flow and parking of vehicles on campus roads, driveways and parking facilities or areas.
  (1) Rules for this purpose shall be promulgated by the governing boards in the manner prescribed in section six, article one of this chapter; and
  (2) When so promulgated, the rules have the force and effect of law.
  (3) The governing board shall post in a conspicuous location in each parking facility or area, a summary of the rules governing the use of the facility or area including, but not limited to, the availability of temporary parking permits and where these permits may be obtained and the penalties which may be imposed for violations of the rules.
  (4) The governing board shall post in a conspicuous location along each campus road and driveway notice signs pertaining to the speed of vehicles, spaces available for parking, directional flow of traffic and penalties which may be imposed for violations of the rules.
  (c) (b) Any person parking or operating a vehicle in violation of the rules shall be issued a citation:
  (1) Describing the offense charged; and
  (2) Ordering an appearance:
  (A) Within ten days, excluding Saturdays, Sundays and holidays observed by the state institution, before a designated official of the institution;
  (B) Before a magistrate located in the county if the person cited fails to appear within the ten days; or
  (C) Before the judge of the municipal court, if the state institution is located within a municipality having such an official and the person cited fails to appear within the ten days.
  (d) (c) The designated official of the state institution has exclusive jurisdiction of the offense during the ten-day period until the citations are citation is forwarded to a magistrate. For the state institutions of higher education under the jurisdiction of the governing board of Marshall University and for the state institution of higher education known as West Virginia University only, the designated official of the institution has exclusive jurisdiction of the offense for thirty days following the violation. After thirty days the official forwards shall forward the citation to a magistrate. Any person so cited may plead no contest to the offense and, by so pleading, is subject to a civil penalty to be determined uniformly by the designated official and commensurate with the severity of the offense. For the state institutions under the jurisdiction of the governing board of Marshall University and for the state institution of higher education known as West Virginia University only, the amount imposed may not exceed $20. For all other institutions the amount may not exceed $10, for each offense as partial reimbursement to the state institution of higher education for the cost of regulating traffic and parking. In the case of the state institutions under the jurisdiction of the governing board of Marshall University and in the case of the state institution of higher education known as West Virginia University only, the designated official shall determine the penalty uniformly, commensurate with the severity of the offense, and may apply academic restrictions in lieu of requiring a student to appear in court and receive penalties otherwise provided in this section. Moneys derived from civil penalties imposed herein in this subsection shall be deposited in the special fund in the state treasury created by this section and credited to the state institution to which the penalty was paid institution's auxiliary and auxiliary capital fees fund.
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(e) (d) Upon expiration of the ten-day or thirty-day period, as applicable, or upon a pleading of not guilty before the designated official of the state institution within the applicable period, the magistrate or judge of the municipal court has jurisdiction of the offense. Any person cited under the provisions of this section, upon a finding of guilty by the magistrate or municipal judge, is subject to a fine for each offense by the state institutions under the jurisdiction of the governing board of Marshall University and for the state institution of higher education known as West Virginia University only, of up to $40, and at all other state institutions not less than $10 nor more than $20, the amount to be commensurate with the severity of the offense.
  (f) (e) Each designated official of a state institution presiding over a case under the provisions of this section shall keep a record of every citation which alleges a violation of such the provisions, or the rules promulgated in accordance therewith with this section, and shall keep a record of every official action in reference thereto to the citation including, but not limited to, a record of every plea of no contest, conviction or acquittal, of the offense charged, and the amount of the fine or civil penalty resulting from each citation.
  (g) (f) Whenever a vehicle is parked on any state institution campus road, driveway or parking facility or area in a manner which violates posted rules and substantially impedes the flow of traffic or endangers the health and safety, in addition to issuing a citation and subsequent procedures set forth in this section, the institution may in addition to the issuing of a citation and subsequent procedures set forth herein, remove the vehicle, by towing or otherwise, to an area owned by the institution or areas designated for this purpose. The vehicle, having been towed to the designated area or areas, may be rendered immovable by use of locking wheel blocks or other device not damaging to the vehicle. The state institution of higher education shall maintain any vehicle so towed in the same condition as it was immediately prior to being towed, but shall is not be liable for any damage to a vehicle towed to, or kept in, a designated area pursuant to the provisions of this section. The state institution of higher education shall pay for the cost of removing the vehicle and shall have has a right to reimbursement from the owner for this cost and for the reasonable cost of keeping the vehicle in the designated area. Until payment of these costs, the state institution of higher education may retain possession of the vehicle and the institution shall have a lien on the vehicle for the amount due. The state institution of higher education may enforce this lien in the manner provided in section fourteen, article eleven, chapter thirty-eight of this code for the enforcement of other liens. For the state institutions of higher education under the jurisdiction of the governing board of Marshall University and for the state institution of higher education known as West Virginia University only, the provisions of this subsection also apply when a vehicle is subject to three or more unpaid citations.
  (h) (g) If, at any time, Marshall Community and Technical College ceases to share a physical campus location with Marshall University, it may not be included as an institution under the jurisdiction of the governing board of Marshall University for the purposes of subsections (a),(d),(e) and (g) (c), (d) and (f) of this section.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§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 ensure that the following steps occur:
  (1) Do not preclude any No person is precluded from participating and making sales thereof to the Council, Commission or governing board or to the Council or Commission except as otherwise provided in section five of this article. Provision of consultant Providing consulting services such as strategic planning services does not preclude or inhibit the governing boards, Council or Commission from considering any a qualified bid or response for delivery of a product or a commodity because the consultant services are rendered from the individual providing the services;
  (2) Establish and prescribe Specifications in all proper cases shall be established and prescribed 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 shall be adopted and prescribed;
  (4) Negotiate for and make Purchases and acquisitions in such quantities, at such times and under contract, shall be negotiated for and made 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 shall be advertised on all purchases exceeding $25,000, to purchase and shall be purchased by means of sealed or electronically-submitted bids and competitive bidding or to effect advantageous purchases shall be effected through other accepted governmental methods and practices;
  (6) Post Notices of all for acquisitions and purchases for which competitive bids are being solicited shall be posted in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such the purchases. and The rules shall ensure that the notice is available to the public during business hours;
  (7) Provide for purchasing Purchases shall be made in the open market;
  (8) Provide for vendor notification Vendors shall be notified of bid solicitation and emergency purchasing;
  (9) Provide that Competitive bids are not required for purchases of $25,000 or less; and
  (10) Provide for not No fewer than three bids where shall be obtained when bidding is required, except if fewer than three bids are submitted, an award may be made from among those received.
  (c) When a state institution of higher education submits a contract, agreement or other document to the Attorney General for approval as to form as required by this chapter the following conditions apply:
  (1) 'Form' means compliance with the constitution and statutes of the State of West Virginia;
  (2) The Attorney General does not have the authority to reject a contract, agreement or other document based on the substantive provisions therein in the contract, agreement or document or any extrinsic matter so as long as it complies with the constitution and statutes of this state;
  (3) Within fifteen days of receipt, the Attorney General shall notify the appropriate state institution of higher education in writing that the contract, agreement or other document is approved or disapproved as to form. If the contract, agreement or other document is disapproved as to form, the notice of disapproval shall identify each defect that supports the disapproval; and
  (4) If the state institution elects to challenge the disapproval by filing a writ of mandamus or other action and prevails, then the Attorney General shall pay reasonable attorney fees and costs incurred.
  (d) Pursuant to this subsection, the governing boards of Marshall University and West Virginia University, respectively, may carry out the following actions:
  (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, and capital improvements, including equipment, if the rental of which is necessarily required by the governing board; and
  (4) Use purchase cards under terms approved for the Commission, the Council and governing boards of state institutions of higher education and participate in any expanded program of use as provided in subsection (w) (u) of this section.
  (e) The governing boards shall adopt sufficient accounting and auditing procedures and promulgate and adopt appropriate rules subject to the provisions of section six, article one of this chapter to govern and control acquisitions, purchases, leases and other instruments for grounds, buildings, office or other space, and capital improvements, including equipment, or lease-purchase agreements.
  (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.
  (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 applies to the competitive bids made pursuant to this section.
  (h) The governing boards, Council and Commission shall maintain a purchase file, which shall be a public record and open for public inspection.
  (1) After the award of the order or contract, the governing boards, Council and Commission shall indicate upon the successful bid the following information:
  (A) That it was Designation as the successful bid; and shall further indicate
  
(B) Why The reason any bids are were rejected; and
  (C) If the mathematical low vendor is was not awarded the order or contract, the reason therefor.
  (2) 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.
  (3) All files, no matter the storage method, shall be open for inspection by the Legislative Auditor upon request.
  (i) The Commission and Council also jointly shall adopt promulgate 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 has one of the following qualifications:
  (1) Is 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.
  (j) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of $50,000, 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 these buyers, a blanket surety bond may be obtained. Any such The bond shall be filed with the Secretary of State and the cost of any such the bond shall be paid from funds appropriated to the applicable governing board or the Council or Commission.
  (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 that article to determine whether the amount of the purchase is within the Commission's, Council's or governing board's quarterly allotment of the Commission, Council or governing board, is in accordance with the approved expenditure schedule and otherwise conforms to the provisions of said the article.
  (l) The governing boards, Council and Commission may make requisitions upon the State 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 State Auditor shall draw a warrant upon the Treasurer for such those 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.
  (m) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the Council or Commission in the name of the state and shall be approved as to form by the Attorney General. A contract which requires approval as to form by the Attorney General is considered approved if the Attorney General has not responded within fifteen days of presentation of the contract. A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance which use terms and conditions or standardized forms previously approved by the Attorney General and do not make substantive changes in the terms and conditions of the contract do not require approval as to form by the Attorney General. The Attorney General shall make a list of those changes which he or she considers to be substantive and the list, and any changes thereto to the list, 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.
  (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 to this article, the purchase or contract is void and of no effect.
  (o) Any A governing board or the Council or Commission, as appropriate, may request the director of purchases purchasing 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 purchasing shall cooperate with that governing board, Council or Commission, as appropriate, in all such purchases and acquisitions upon such that request.
  (p) Each governing board or the Council or Commission, as appropriate, shall may 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 A private school institution desiring to join as purchasers purchaser on such purchase contracts shall file with that governing board or the Council or Commission, as appropriate, an affidavit signed by the president or designee of the private 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 institution 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.
  (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 that source, and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract that source would be the most financially advantageous manner of making the purchase.
  (r) An independent performance audit of all purchasing functions and duties which are performed at any state institution of higher education, except Marshall University and West Virginia University, shall be performed each fiscal year. The Joint Committee on Government and Finance shall conduct the performance audit and the governing boards, Council and Commission, as appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing boards, Council or Commission.
  (1) The governing boards of Marshall University and West Virginia University, respectively, shall provide for independent performance audits of all purchasing functions and duties on their campuses at least once in each three-year period.
  (2) Each audit shall be inclusive of the entire time period that has elapsed since the date of the preceding audit.
  (3) Copies of all appropriate documents relating to any audit performed by the governing boards of Marshall University and West Virginia University shall be furnished to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability within thirty days of the date the audit report is completed.
  (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.
  (t) Consultant services, such as strategic planning services, do 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.
  (u) The Commission or Council may enter into lease-purchase agreements for capital improvements, including equipment, on behalf of or for the benefit of state institutions of higher education, the Commission or Council. After the Commission or Council, as appropriate, has granted approval for lease-purchase agreements by the governing boards, a governing board may enter into lease-purchase agreements for capital improvements, including equipment, except the governing boards of Marshall University and West Virginia University may enter into lease- purchase agreements 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 agreement so entered shall constitute a special obligation of the State of West Virginia. The obligation under a lease-purchase agreement so entered may be from any funds legally available to the Commission, Council or the institution and must be cancelable at the option of the Commission, Council or the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof, never constitutes an indebtedness of the State of West Virginia or any department, agency or political subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and may not be a charge against the general credit or taxing powers of the state or any political subdivision thereof. Such facts shall be plainly stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the agreement as to form by the Attorney General. of West Virginia Proposals for any agreement shall be requested in accordance with the requirements of this section and any rules or guidelines of the Commission and Council. In addition, any lease-purchase agreement which exceeds one hundred thousand dollars total shall be approved as to form by the Attorney General. 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.
  
(v) Notwithstanding any other provision of this code to the contrary, the Commission, Council and governing boards have the authority, in the name of the state, to lease, or offer to lease, as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:
  
(1) The Commission, Council and governing boards have sole authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the Commission, Council or governing boards for the institutions under their jurisdiction. For state institutions of higher education other than Marshall University and West Virginia University, the chief executive officer of the Commission, Council or an institution shall certify the following:
  
(A) That the grounds, buildings, office space or other space requested is necessarily required for the proper function of the Commission, Council or institution;
  
(B) That the Commission, Council or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and
  
(C) That satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings currently owned or leased by the Commission, Council or the institution. Before executing any rental contract or lease, the Commission, Council or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist, and shall contract for or lease the premises at a price not to exceed the fair rental value.
  
(2) The Commission, Council and governing boards are authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year but not to exceed forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to the provisions of this subsection shall be presented by the Commission or Council, as appropriate, to the Joint Committee on Government and Finance for prior review. Any such lease shall contain, in substance, all the following provisions:
  
(A) That the Commission, Council or governing board, as lessee, has the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor at least thirty days prior to the last day of the succeeding month;
  
(B) That the lease is considered canceled without further obligation on the part of the lessee if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise acts to impair the lease or cause it to be canceled; and
  
(C) That the lease is considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the Commission, Council or governing board before the end of the then-current fiscal year.
  
(3) The Commission, Council or institution which is granted any grounds, buildings, office space or other space leased in accordance with this section may not order or make permanent changes of any type thereto, unless the Commission, Council or governing board, as appropriate, has first determined that the change is necessary for the proper, efficient and economically sound operation of the institution. For purposes of this section, a 'permanent change' means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible thing which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
  
(4) Leases and other instruments for grounds, buildings, office or other space, once approved by the Commission, Council or governing board, may be signed by the chief executive officer of the Commission, Council or institution. Any lease or instrument exceeding one hundred thousand dollars annually shall be approved as to form by the Attorney General. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the State Auditor.
  
(5) The Commission and Council jointly may promulgate rules they consider necessary to carry out the provisions of this section. The governing boards of Marshall University and West Virginia University shall promulgate rules pursuant to section six, article one of this chapter to implement the provisions of this section.
  
(w) (u) 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 meets the following conditions:
  (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) (2) 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) (3) of this subsection may use purchasing cards for the following purposes:
  (A) Payment of travel expenses directly related to the job duties of the traveling employee, including, but not limited to, fuel and food; and
  (B) Payment of 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 June 30, 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) (3) 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) (2) of this subsection. The Commission and Council each shall authorize expanded use of purchasing cards pursuant to said that subdivision for any such institution it determines has the capacity to comply.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-8. Collection; disposition and use of capital and auxiliary capital fees; creation of special capital and auxiliary capital improvements funds; revenue bonds.

  (a) This section and any rules adopted by the Commission, Council or both, in accordance with this section and article three-a, chapter twenty-nine-a of this code, governs govern the collection, disposition and use of the capital and auxiliary capital fees authorized by section one of this article. The statutory provisions governing collection and disposition of capital funds in place prior to the enactment of this section remain in effect.
  (b) Fees for full-time students. -- The governing boards shall fix capital and auxiliary capital fees for full-time students at each state institution of higher education per semester. For institutions under its jurisdiction, a governing board may fix the fees at higher rates for students who are not residents of this state.
  (c) Fees for part-time students. -- For all part-time students and for all summer school students, the governing boards shall impose and collect the fees in proportion to, but not exceeding, the fees paid by full-time students. Refunds of the fees may be made in the same manner as any other fee collected at state institutions of higher education.
  (d) There is continued in the State Treasury a special capital improvements fund and special auxiliary capital improvements fund for each state institution of higher education and the Commission into which shall be paid all proceeds, respectively, of the following:
  (1) The capital and auxiliary capital fees collected from students at all state institutions of higher education pursuant to this section; and
  (2) The fees collected from the students pursuant to section one of this article. The fees shall be expended by the Commission and governing boards for the payment of principal of or interest on any revenue bonds issued by the board of regents or the succeeding governing boards for which the fees were pledged prior to the enactment of this section.
  (e) The governing boards may make expenditures from any of the special capital improvements funds or special auxiliary capital improvement funds established in this section to finance or fund on a cash basis, in whole or in part, together in combination with any federal, state or other grants or contributions, for any one or more of the following projects:
  (1) The acquisition of land or any rights or interest in land;
  (2) The construction or acquisition of new buildings;
  (3) The renovation or construction of additions to existing buildings;
  (4) The acquisition of furnishings and equipment for the buildings; and
  (5) The construction or acquisition of any other capital improvements or capital education facilities at the state institutions of higher education, including any roads, utilities or other properties, real or personal, or for other purposes necessary, appurtenant or incidental to the construction, acquisition, financing and placing in operation of the buildings, capital improvements or capital education facilities, including student unions, dormitories, housing facilities, food service facilities, motor vehicle parking facilities and athletic facilities.
  (f) The governing boards, in their discretion, may use the moneys in the special capital improvements funds and special auxiliary improvement funds to finance the costs of the purposes set forth in this section on a cash basis. The Commission, when singly or jointly requested by the Council or governing boards, periodically may issue revenue bonds of the state as provided in this section to finance all or part of the purposes and pledge all or any part of the moneys in such the special funds for the payment of the principal of and interest on the revenue bonds, and for reserves for the revenue bonds. Any pledge of the special funds for the revenue bonds shall be a prior and superior charge on the special funds over the use of any of the moneys in the funds to pay for the cost of any of the purposes on a cash basis. Any expenditures from the special funds, other than for the retirement of revenue bonds, may be made by the Commission or governing boards only to meet the cost of a predetermined capital improvements program for one or more of the state institutions of higher education, in the order of priority agreed upon by the governing board or boards and the Commission and for which the aggregate revenue collections projected are presented to the Governor for inclusion in the annual budget bill, and are approved by the Legislature for expenditure. Any expenditure made pursuant to subsection (e) of this section shall be part of the ten-year campus development plan approved by the institutional governing board pursuant to section three, article nineteen of this chapter.
  (g) The revenue bonds periodically may be authorized and issued by the Commission or governing boards to finance, in whole or in part, the purposes provided in this section in an aggregate principal amount not exceeding the amount which the Commission determines can be paid as to both principal and interest and reasonable margins for a reserve therefor from the moneys in the special funds.
  (h) The issuance of the revenue bonds shall be authorized by a resolution adopted by the governing board receiving the proceeds and the Commission, and the revenue bonds shall bear the date or dates; mature at such time or times not exceeding forty years from their respective dates; be in such form either coupon or registered, with such exchangeability and interchangeability privileges; be payable in such medium of payment and at such place or places, within or without the state; be subject to such terms of prior redemption at such prices not exceeding one hundred five per centum of the principal amount thereof; and shall have the other terms and provisions determined by the governing board receiving the proceeds and by the Commission. The revenue bonds shall be signed by the Governor and by the chancellor of the Commission or the chair of the governing boards authorizing the issuance thereof of the revenue bonds, under the Great Seal of the State, attested by the Secretary of State, and the coupons attached to the revenue bonds shall bear the facsimile signature of the chancellor of the Commission or the chair of the appropriate governing boards. The revenue bonds shall be sold in the manner the Commission or governing board determines is for in the best interests of the state.
  (i) The Commission or governing boards may enter into trust agreements with banks or trust companies, within or without the state, and in the trust agreements or the resolutions authorizing the issuance of the bonds may enter into valid and legally binding covenants with the holders of the revenue bonds as to the custody, safeguarding and disposition of the proceeds of the revenue bonds, the moneys in the special funds, sinking funds, reserve funds or any other moneys or funds; as to the rank and priority, if any, of different issues of revenue bonds by the Commission or governing boards under the provisions of this section; as to the maintenance or revision of the amounts of the fees; as to the extent to which swap agreements, as defined in subsection (h), section two, article two-g, chapter thirteen of this code shall be used in connection with the revenue bonds, including such provisions as payment, term, security, default and remedy provisions as the Commission shall consider considers necessary or desirable, if any, under which the fees may be reduced; and as to any other matters or provisions which are considered necessary and advisable by the Commission or governing boards in the best interests of the state and to enhance the marketability of the revenue bonds.
  (j) After the issuance of any revenue bonds, the fees at the state institutions of higher education pledged to the payment thereof of the revenue bonds may not be reduced as long as any of the revenue bonds are outstanding and unpaid except under such the terms, provisions and conditions as shall be contained in the resolution, trust agreement or other proceedings under which the revenue bonds were issued. The revenue bonds are and constitute negotiable instruments under the Uniform Commercial Code of this state; together with the interest thereon, be are exempt from all taxation by the State of West Virginia, or by any county, school district, municipality or political subdivision thereof; and the revenue bonds may not be considered to be obligations or debts of the state and the credit or taxing power of the state may not be pledged therefor, but the revenue bonds shall be payable only from the revenue pledged therefor as provided in this section.
  (k) Additional revenue bonds may be issued by the Commission or governing boards pursuant to this section and financed by additional revenues or funds dedicated from other sources.
  (1) There is hereby created in the State Treasury a The special revenue fund in the State Treasury, known as the Community and Technical College Capital Improvement Fund into which shall be deposited the amounts specified in subsection (j), section eighteen, article twenty-two, chapter twenty-nine of this code is continued. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by the Commission for community and technical college capital improvements.
__(2) There is hereby created in the State Treasury a special revenue fund known as the Higher Education Policy Commission Capital Improvement Fund into which shall be deposited the amounts specified in subsection (k), section eighteen, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by the Commission for college and university capital improvements.
  (l) Funding of systemwide and campus-specific revenue bonds under any other section of this code is continued and authorized pursuant to the terms of this section. Revenues of any state institution of higher education pledged to the repayment of any revenue bonds issued pursuant to this code shall remain pledged.
  (m) Any revenue bonds for state institutions of higher education proposed to be issued under this section or other sections of this code first must be approved by the Commission.
  (n) Revenue bonds issued pursuant to this code may be issued by the Commission or governing boards, either singly or jointly.
  (o) Fees pledged for repayment of revenue bonds issued under this section or article twelve- b, chapter eighteen prior to or after the effective date of this section shall be transferred to the Commission in a manner prescribed by the Commission. The Commission may transfer funds from the accounts of institutions pledged for the repayment of revenue bonds issued prior to the effective date of this section or issued subsequently by the Commission upon the request of institutions, if an institution fails to transfer the pledged revenues to the Commission in a timely manner.
  (p) Effective July 1, 2004, the capital and auxiliary capital fees authorized by this section and section one of this article are in lieu of any other fees set out in this code for capital and auxiliary capital projects to benefit public higher education institutions. Notwithstanding any other provisions of this code to the contrary, in the event any capital, tuition, registration or auxiliary fees are pledged to the payment of any revenue bonds issued pursuant to any general bond resolutions of the Commission, any of its predecessors or any institution, adopted prior to the effective date of this section, such the fees shall remain in effect in amounts not less than the amounts in effect as of that date, until the revenue bonds payable from any of the fees have been paid or the pledge of the fees is otherwise legally discharged.
ARTICLE 19. CAPITAL PROJECTS AND FACILITIES NEEDS.
§18B-19-1. Legislative findings and intent.
  (a) The Legislature finds that:
  (1) State institutions of higher education vary widely in the conditions of their facilities infrastructure;
  (2) State institutions of higher education vary widely in their ability to incur debt for capital improvements. It is nearly impossible for community and technical colleges and some smaller baccalaureate institutions to fund significant capital improvements in the absence of state funding;
  (3) A student enrolled at a community and technical college that previously was administratively linked to a baccalaureate institution pays substantially higher tuition and mandatory fees than a student enrolled at a freestanding community and technical college. This cost discrepancy is due in large part to the significantly higher capital fees charged to these students to pay debt service for capital improvements.
  (4) The substantial amount of capital fees that students must pay at the institution level contributes significantly to the poor grade the state receives in the category of 'Affordability' in Measuring Up: The National Report Card on Higher Education.
  (5) It is beneficial for the state to provide additional ongoing capital funding to reduce the obligation of students and parents to bear the cost of higher education capital improvements and facilities maintenance;
  (6) West Virginia is one of very few states that does not address higher education capital improvements and facilities maintenance needs through a statewide plan;
  (7) State funding for capital improvements should align with state and system higher education goals, objectives and priorities as set forth in article one-d of this chapter;
  (8) State capital funding should focus primarily on educational and general capital improvements, not auxiliary capital improvements.
  (9) Renovations of existing buildings generally deserve greater consideration for state funding than new construction. However, new construction may deserve greater consideration than renovation when a state or system goal, objective or priority is implicated.
  (10) As the Legislature increases funding for new educational and general capital improvements and major renovations, and supplants existing educational and general debt, institutions should target funds for maintenance and deferred maintenance needs.
  (11) If community and technical colleges are to keep the cost of education affordable, they cannot be expected to fund maintenance obligations entirely from student capital fees.
  (12) The Commission and Council should scrutinize all institutional requests to incur additional debt carefully to determine their effect on institution debt capacity and the impact that incurring additional debt will have on students.
  (13) State institutions of higher education ultimately should target adequate state capital contributions and capital fees to address maintenance and deferred maintenance needs.
  (14) Until institutions are able to generate sufficient revenue to address maintenance and deferred maintenance needs, the Legislature should provide periodic funding to assist institutions in addressing these needs. Funding priority should be given to projects that address building code requirements and critical maintenance needs. 
  (15) In supporting future high priority capital needs, the Legislature, Commission and Council should not reward institutions with state funding if they neglect to address facilities maintenance needs or do not prudently manage their capital resources.
  (16) Once an institution's capital development plan has been approved by the governing board and the Commission or Council, as appropriate, project priorities should not change significantly from year to year;
  (17) Commission and Council staff should participate to a greater extent in managing capital projects at smaller institutions than at larger institutions as smaller institutions often lack the expertise necessary to plan, design and complete projects at or under budget.
  (b) The intent of the Legislature relating to this article includes, but is not limited to, the following:
  (1) Dedicated state funding sources shall be designated to finance construction and renovation of educational and general facilities at state institutions of higher education from time to time;
  (2) Capital project lists submitted by institutions to the Commission or Council, as appropriate, and capital project lists submitted by the Commission and Council to the state budget office, Legislative Oversight Commission on Education Accountability, and Joint Committee on Government and Finance for consideration for state funding shall be reasonable requests that align with state and system goals, objectives and priorities and reasonably could be funded if approved;
  (3) As the Legislature increases its responsibility for financing new educational and general facilities and major renovations, the Commission, Council and institutions shall ensure that sufficient capital revenues are available for maintenance and that the facilities are maintained adequately;
  (4) Ongoing state funding shall be dedicated to supplement capital fees available for maintenance at community and technical colleges; and
  (5) Once a system capital plan is in place, institutions annually shall set aside adequate funding to ensure that ongoing facilities maintenance needs are met.
§18B-19-2. Defined terms.
  As used in this article, the following terms have the meanings ascribed to them.
  (a) 'ADA' means the Americans with Disabilities Act, pursuant to 42 U. S. C. §12101, et seq.
  (b) 'Auxiliary enterprise' means an entity that exists to furnish goods or services to students, faculty, staff or others; charges a fee directly related to, although not necessarily equal to, the cost of the goods or services; and is managed as essentially self-supporting.
  (c) 'Auxiliary facility' means a building or structure that is used for an auxiliary enterprise including, but not limited to, residence halls, food services, parking, intercollegiate athletics, faculty and staff housing, student unions, bookstores and other service centers.
  (d) 'Auxiliary fees' includes, but is not limited to, the following sources:
  (1) Parking fees received from any source;
  (2) Revenues received from athletic events, including ticket sales, television revenues and skybox fees;
  (3) Bookstore revenues;
  (4) Student union vendor and user fees;
  (5) Donations or grants from any external source;
  (6) Facility rental fees; and
  (7) Fees assessed to students to support auxiliary enterprises.
  (e) 'Capital planning' means a purposeful activity that focuses attention on long term physical plant objectives that should be accomplished in a logical sequence over time as opportunities arise and resources become available.
  (f) 'Capital project management' means planning, designing, bidding and providing construction administration and oversight of architectural, engineering and construction contracts and projects.
  (g) 'Deferred maintenance' means the failure to perform needed repair, maintenance and renewal as part of normal maintenance management for capital facilities and deferring such action to a future budget cycle or until funds are available.
  (h) 'Educational and general capital fees' means the fees collected from students to pay debt service for capital improvement bonds issued by the Commission and governing boards for educational and general facilities, for the maintenance of those facilities and to fund capital improvements in those facilities on a cash basis.
  (i) 'Educational and general facility' means a building or structure used for instruction and instructional support purposes, and includes classroom, laboratory, library, computer laboratory, faculty and administrative office and other academic support spaces.
  (j) 'Extraordinary circumstance' or 'extraordinary circumstances' means, a situation involving life-safety issues, issues that would result in extensive damage to a facility if not addressed immediately, any unforeseen opportunity to use external funds and any other situation the Commission or Council determines should warrant special consideration.
  (k) 'Life-safety' means a condition existing on a campus that, if not corrected immediately, would jeopardize the safety and property of students, faculty, staff and the visiting public.
  (l) 'Maintenance' means the work necessary within a budget cycle to realize the originally anticipated life of a fixed asset, including buildings, fixed equipment and infrastructure.
  (m) 'Governing board', 'state institution of higher education' and 'institution under the jurisdiction of the Commission' means all state institutions of higher education including Marshall University and West Virginia University and their respective governing boards.
§18B-19-3. System capital development planning.
  (a) By December 31, 2010, the Commission and Council, jointly or separately, shall develop a system capital development plan for approval by the Legislative Oversight Commission on Education Accountability. At a minimum the initial plan shall include the following:
  (1) System goals for capital development;
  (2) An explanation of how system capital development goals align with state goals, objectives and priorities established in articles one and one-d of this chapter and with system master plans;
  (3) A process for prioritizing capital projects for state funding based on their ability to further state goals, objectives and priorities and system capital development goals;
  (4) A building renewal formula to calculate a dollar benchmark that shall be collected annually and invested in facilities to minimize deferred maintenance and to provide the Commission and Council objective information to determine if the investments in maintenance are occurring;
  (5) A process for governing boards to follow in developing and submitting campus development plans to the Commission or Council, as appropriate, for approval;
  (6) A process for governing boards to follow to ensure that sufficient revenue is generated for and applied toward facilities maintenance; and
  (7) A discussion addressing how capital fees dedicated to debt service for the bond issue to be paid off in 2012 will be used after the payoff date.
  (b) The system capital development plan shall be developed in consultation with governing boards and appropriate institution staff. Before approving the capital development plan, the Commission and Council shall afford interested parties an opportunity to comment on the plan through a notice-and-comment period of at least thirty days.
  (c) The Commission and Council shall update its system capital development plan at least once in each ten-year period.
§18B-19-4. Institutional campus development planning.
  (a) Each governing board shall update its current campus development plan and submit the updated plan to the Commission or Council, as appropriate, for approval by June 30, 2012. A campus development plan shall be developed for a ten-year period and shall align with criteria specified in the following sources:
  (1) The system capital development plan;
  (2) The institution's approved master plan and compact; and
  (3) The original campus development plan objectives.
  (b) Campus development plans are intended to be aspirational; however, an institution's plan shall be appropriate to its size, mission, and enrollment and to the fiscal constraints within which the institution operates. At a minimum the campus development plan shall include the following:
  (1) The governing board's development strategy;
  (2) An assessment of the general condition and suitability of buildings and facilities, including deferred maintenance, life-safety and building code issues, ADA requirements and energy efficiency;
  (3) An assessment of the impact of projected enrollment and demographic changes on building and facility needs;
  (4) A comprehensive list of deferred maintenance projects that need to be addressed for each campus by building or facility and provide an estimated cost for each;
  (5) A list of existing buildings and facilities in need of renovations, additions, demolition or any combination thereof;
  (6) A list of major site improvements that are needed, including vehicular and pedestrian circulation, parking and landscaping;
  (7) A list of telecommunications, utilities and other infrastructure improvements that are needed;
  (8) A list of potential real property acquisitions and delineation of clear property acquisition boundaries that are reasonably appropriate for campus expansion;
  (9) A list of proposed new facilities and building sites;
  (10) A list of capital projects in priority order;
  (11) Estimates of the timing, phasing and projected costs associated with individual projects;
  (12) If an institution has multiple campuses in close proximity, a delineation of how the campuses should interact and support each other to minimize duplication of facilities, improve efficiency and be aesthetically compatible;
  (13) A statement of the impact of the plan upon the local community and the input afforded local and regional governmental entities and the public with respect to its implementation; and
  (14) Any other requirement established by the Commission and Council in the rules required by section seventeen of this article.
  (c) Campus development plans shall incorporate all current and proposed facilities, including educational and general and auxiliary facilities.
  (d) At the next regularly scheduled meeting of the Commission or Council, as applicable, following the fifth anniversary date after the Commission or Council approves the development plan of a governing board, the governing board shall report on the progress made in the first five years to implement the campus development plan for each campus under its jurisdiction. In addition, the governing board shall report on its plans to implement the remaining five-year period of its campus development plan.
  (e) Each governing board shall update its campus development plan at least once in each ten- year period and any update is subject to the approval of the Commission or Council, as appropriate.
  (f) A governing board may not implement a campus development plan or plan update that has not been approved by the Commission or Council, as appropriate.
§18B-19-5. Capital appropriation requests.
  (a) The Commission and Council each shall submit a prioritized capital appropriation request annually to the State Budget Office as required by article two, chapter eleven-b of this code consisting of major capital projects and maintenance projects.
  (b) The Commission and Council each shall develop a process for governing boards to follow in submitting a list of major educational and general capital projects so that a prioritized major capital project list, approved by the Commission or Council, as appropriate, may be submitted to the State Budget Office by the applicable deadline.
  (1) The governing board's major capital project list shall include the following items:
  (A) Projects identified in the governing board's approved campus development plan or plans. A project may not be included which is not contained in the approved plan, except when extraordinary circumstances otherwise warrant;
  (B) A current estimate of each project's estimated cost accounting for inflation since completion of the campus development plan. The size and scope of the project may not change unless the campus development plan has been updated and approved as provided for in section four of this article; and
  (C) Any additional information required to be provided by the Commission, Council or State Budget Office.
  (2) The Commission and Council each shall rank the major capital projects submitted by the governing boards according to priority consistent with the criteria outlined in the system capital development plan. The Council and Commission may not submit to the State Budget Office a request for an institution which the Commission or Council determines reasonably could not secure funding through the appropriation process during the following fiscal year.
  (c) The Commission and Council each shall develop a process for governing boards to follow in submitting a list of maintenance projects so that a prioritized maintenance project list, approved by the Commission or Council, as appropriate, may be submitted to the State Budget Office by the applicable deadline.
  (1) No later than April 1, 2011, and annually thereafter, the Commission and Council, as appropriate, shall provide each governing board a building renewal calculation that identifies the funds that should be collected and invested in its buildings and facilities during the next fiscal year to maintain them and minimize deferred maintenance.
  (2) Upon receiving the building renewal calculation, each governing board shall make realistic revenue estimates of the funds available for maintenance projects from educational and general capital fees, from auxiliary and auxiliary capital fees and from any other revenue that may be used for maintenance projects, as well as any anticipated reserves. The governing boards then shall identify and submit proposed maintenance projects, consistent with its campus development plan or plans, to be funded from these revenues.
  (3) The Commission and Council each shall report to the Legislative Oversight Commission on Education Accountability on the revenue available to governing boards for educational and general and auxiliary maintenance projects, as well as any shortfalls based on building renewal formula calculation, and major maintenance projects that institutions propose to undertake during the upcoming fiscal year.
  (4) The Commission shall work with institutions under its jurisdiction to ensure that adequate funds are generated to fund maintenance and build adequate reserves from educational and general and auxiliary capital fees and other revenue consistent with the building renewal formula. The Legislature recognizes that it may take several years for this to be accomplished fully.
  (5) The Council shall work with the Legislature and institutions under its jurisdiction to ensure that a combination of appropriated and nonappropriated revenue is available to fund maintenance and build adequate reserves at community and technical colleges consistent with the building renewal formula.
§18B-19-6. Capital project financing.
  (a) The Commission and governing boards, jointly or singly, may issue revenue bonds for capital project financing in accordance with the provisions of section eight, article ten of this chapter.
 (b) A governing board may seek funding for and initiate construction or renovation work only for projects contained in an approved campus development plan.
  (c) A governing board may fund capital improvements on a cash basis or through bonding or other financing method that is approved by the Commission, and by the Council if appropriate.
  (1) If the cost of an improvement project for any institution, except Marshall University or West Virginia University, exceeds $1 million, the governing board first shall obtain the approval of the Commission or Council, as appropriate. If the cost of an improvement project for Marshall University or West Virginia University exceeds $5 million, the governing board first shall obtain the approval of the Commission.
  (2) Prior to approving bonding or any alternative financing method, the Commission, and Council if appropriate, shall evaluate the following issues:
  (A) The institution's debt capacity and ability to meet the debt service payments for the full term of the financing;
  (B) Whether the revenue to be generated by the institution is sufficient to complete the project;
  (C) The institution's ability to fund ongoing operations and maintenance;
  (D) The impact of the financing arrangement on students; and
  (E) Any other factor considered appropriate.
  (d) A governing board shall notify the Joint Committee on Government and Finance at least thirty days before beginning construction or renovation work on any capital project in excess of $1 million.
  (e) The Commission may pledge all or part of the fees of any or all state institutions of higher education as part of a system bond issue.
  (f) Any fee or revenue source pledged prior to the effective date of this section for payment of any outstanding debt remains in effect until the debt is fully repaid or refunded.
§18B-19-7. Capital project management.
  (a) The Commission, Council and governing boards shall ensure that capital funds are spent appropriately and that capital projects are managed effectively. Project management shall be conducted in all respects according to sound business practices and applicable laws, and rules.
  (b) The Commission shall employ a sufficient number of competent facilities staff experienced in capital project development and management that is suitable for the number, size and complexity of the capital projects being managed. At least one employee shall be Leadership in Energy and Environmental Design (LEED) certified beginning December 31, 2010.
  (c) An institution that has entered into construction contracts averaging more than $50 million over the most recent rolling five-year period is responsible for capital project management at that institution.
  (1) The governing board shall employ the following personnel:
  (A) A competent facilities staff experienced in capital project development and management that is suitable for the number, size and complexity of the capital projects being managed; and
  (B) At least one employee who is Leadership in Energy and Environmental Design (LEED) certified beginning December 31, 2010.
  (2) The governing board shall adopt a capital project management rule in accordance with the provisions of section six, article one of this chapter, that is consistent with the capital management rules of the Commission and Council, as appropriate.
  (3) The capital project management rule shall include at least the following items:
  (A) Delineation of the governing board's responsibilities with respect to capital project management and the responsibilities delegated to the institution's president;
  (B) A requirement for the use of the state's standard contract documents for architectural, engineering, construction, construction management and design-build services as appropriate to a particular project;
  (C) The governing board's requirements for the following procedures:
  (i) Monitoring and approving project designs to ensure conformance with the state and system goals, objectives and priorities and the governing board's master plan, compact and campus development plan;
  (ii) Approval of project budgets, including a reasonable contingency reserve for unknown or unexpected expenses and for bidding;
  (iii) Approval of architectural, engineering, construction and other capital contracts exceeding an amount to be determined by the governing board;
  (iv) Approval of contract modifications and construction change orders; and
  (v) Project closeout and final acceptance of the project by the governing board.
  (4) The institutional capital project management rule shall be filed with the Commission no later than one hundred eighty days following the effective date of the rule required of the Commission and Council in section seventeen of this article.
  (5) The Commission may review or audit projects greater than $5 million periodically to ascertain that appropriate capital project management practices are being employed.
  (d) For institutions that have entered into construction contracts averaging at least $20 million, but not more than $50 million, over the most recent rolling five-year period:
  (1) The governing board, with assistance as requested from the Commission, shall manage all capital projects if the governing board meets the following conditions:
  (A) Employs at least one individual experienced in capital project development and management; and
  (B) Adopts a capital project management rule that is approved by the Commission. The capital project management rule may be amended at the discretion of the governing board, but amendments shall be submitted to the Commission for review and approval before becoming effective.
  (2) The institutional capital project management rule shall include at least the following items:
  (A) Delineation of the governing board's responsibilities with respect to capital project management and the responsibilities delegated to the institution's president;
  (B) A requirement for the use of the state's standard contract documents for architectural, engineering, construction, construction management and design-build services as appropriate to a particular project; and
  (C) The governing board's requirements for the following procedures:
  (i) Monitoring and approving project designs to ensure conformance with the state and system goals, objectives and priorities and the governing board's master plan, compact and campus development plan;
  (ii) Approval of project budgets, including a reasonable contingency reserve for unknown or unexpected expenses and for bidding;
  (iii) Approval of architectural, engineering, construction and other capital contracts exceeding an amount to be determined by the governing board;
  (iv) Approval of contract modifications and construction change orders; and
  (v) Project closeout and final acceptance of the project by the governing board.
  (3) If an institution does not meet the provisions of this subsection, the Commission shall manage all capital projects exceeding $1 million.
  (4) The Commission staff shall review and audit periodically all projects greater than $1 million to ascertain that appropriate project management practices are being employed. If serious deficiencies are identified and not addressed sufficiently within ninety days, Commission staff may assume management of all projects.
  (e) For institutions that have entered into construction contracts averaging less than $20 million over the most recent rolling five-year period and for all community and technical colleges, the Commission and Council shall manage capital projects exceeding $1 million. In the rule required by section seventeen of this article, the Commission and Council, as appropriate, shall adopt procedures to afford participation by the governing boards and staff in the planning, development and execution of capital projects.
§18B-19-8. Maintenance.
  (a) Each governing board shall ensure that facilities under its jurisdiction are maintained and that a listing of any major deferred maintenance projects is provided annually to the Commission or Council, as appropriate.
  (b) Each governing board shall move toward annually investing an amount for maintenance that is consistent with the building renewal formula developed and approved by the Commission and Council and to generate a reserve sufficient to address unexpected maintenance needs.
  (c) The Commission and Council shall evaluate whether sufficient resources are being devoted by a governing board for maintenance based on the following criteria:
  (1) Maintenance expenditures in comparison to building renewal formula estimates of appropriate expenditures; and
  (2) Periodic evaluations of the conditions of facilities at the institution and its performance and effectiveness in maintaining its facilities.
§18B-19-9. Higher education facilities information system.
  (a) The Commission and Council jointly shall develop and maintain a higher education facilities information system. The higher education facilities information system shall serve as a vehicle for carrying out the following functions:
  (1) Acquisition of statewide data;
  (2) Statewide standardization of space use and classification based on nationally recognized standards and measurements to facilitate comparisons among post-secondary education institutions within the state, as well as regionally and nationally; and
  (3) Other purposes as determined by the Commission and Council.
  (b) At a minimum the higher education facilities information system shall:
  (1) Provide a statewide inventory of higher education facilities, including those acquired by long-term lease, lease-purchase or other arrangement whereby the institution has long-term beneficial use. The inventory shall include, but is not limited to, the institution and campus location of the facility, the construction date, the original cost, square footage, floor plans, type of construction, ownership status, the purposes for which it is used, the current replacement cost and any other data the Commission and Council consider appropriate;
  (2) Provide an inventory of all rooms within each facility, which includes, but is not limited to, the room number, the square footage, room usage, number of student stations and any other data the Commission and Council consider appropriate;
  (3) Provide a vehicle for institutions to submit capital appropriation requests to the Commission and Council;
  (4) Provide a vehicle to track the status and cost of institution capital projects from inception to completion, including major maintenance and deferred maintenance projects; and
  (5) Provide the facility information needed to calculate the building renewal formula.
  (c) The Commission and Council shall establish benchmarks for classroom and class laboratory use. An analysis of utilization shall be performed for the fall and spring semesters of each academic year. The efficient use of classrooms and class laboratories is a factor in determining whether an institution needs additional classroom and laboratory facilities.
  (d) Each governing board and any institution under its jurisdiction shall participate and cooperate with the Commission and Council in all respects in the development and maintenance of the higher education facilities information system.
  (e) The higher education facilities information system may be used for other purposes set forth by the Commission and Council in the rules required by section seventeen of this article.
§18B-19-10. Authorization to sell property; use of proceeds.
  (a) Notwithstanding any other provision of law or this code to the contrary, the Commission, Council and governing boards each may sell, lease, convey or otherwise dispose of all or part of any real property that it owns, either by contract or at public auction, and retain the proceeds of the transaction. The Commission, Council and governing boards may not sell, lease, convey or otherwise dispose of any real property without first performing the following steps:
  (1) Having the property appraised by two independent licensed appraisers and may not sell the property for less than the average of the two appraisals;
  (2) Providing notice to the public in the county in which the real property is located by a Class II legal advertisement pursuant to section two, article three, chapter fifty-nine of this code;
  (3) Holding a public hearing on the issue in the county in which the real property is located; and
  (4) In the case of the Commission, notifying the Joint Committee on Government and Finance.
  (b) The Commission, Council or a governing board shall deposit the net proceeds from the sale, lease, conveyance or other disposal of real property into a special revenue account in the State Treasury to be appropriated by the Legislature in the annual budget bill for the purchase of additional real property, equipment or technology, or for capital improvements or maintenance at the institution that sold the surplus real property.
§18B-19-11. Authorization to lease-purchase.
  (a) The Commission or Council may enter into lease-purchase agreements for capital improvements, including equipment, on behalf of, or for the benefit of, a state institution of higher education, the Commission or Council.
  (b) After the Commission or Council, as appropriate, has granted approval for a lease- purchase agreement by a governing board, the board may enter into a lease-purchase agreement for capital improvements, including equipment.
  (c) The governing boards of Marshall University and West Virginia University may enter into lease-purchase agreements for the state institutions of higher education known as Marshall University and West Virginia University without seeking the approval of the Commission.
  (d) A lease-purchase agreement constitutes a special obligation of the State of West Virginia. The obligation may be met from any funds legally available to the Commission, Council or the institution and shall be cancelable at the option of the Commission, Council, governing board or institution at the end of any fiscal year. The obligation, or any assignment or securitization of the obligation, 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 of the state. The facts shall be plainly stated in any lease-purchase agreement.
  (e) A lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the agreement as to form by the Attorney General. Proposals for any agreement shall be requested in accordance with the requirements of this section and rules of the Commission and Council. In addition, any lease-purchase agreement that exceeds $100,000 total shall be approved as to form by the Attorney General.
  (f) 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.
§18B-19-12. Authorization to lease.
  (a) Notwithstanding any other provision of this code to the contrary, the Commission, Council and governing boards may, in the name of the state, lease, or offer to lease, as lessee, any grounds, buildings, office or other space.
  (b) 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 institutions.
  (c) Before executing any rental contract or lease, the Commission, Council or a governing board shall determine the fair market 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 market value.
  (d) The Commission, Council and governing boards may enter into long-term agreements for buildings land and space for periods longer than one fiscal year but not to exceed forty years.
  (e) Any lease shall contain, in substance, all the following provisions:
  (1) 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;
  (2) 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 for the lease or otherwise acts to impair the lease or cause it to be canceled; and
  (3) 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.
  (f) The Commission, Council or institution that 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 that cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
  (g) 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, or designee, of the Commission, Council or institution.
  (h) Any lease or instrument exceeding $100,000 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.
§18B-19-13. Real property contracts and agreements.
  (a) Except as provided elsewhere in this article, 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, shall be approved by the Commission or Council, as appropriate, and provided to the Joint Committee on Government and Finance for prior review, if the transaction exceeds $1 million.
  (b) The Commission, Council and each governing board shall provide the following to the Joint Committee on Government and Finance:
  (1) A copy of any contract or agreement for real property exceeding $1 million to which it is a party; and
  (2) A report setting forth a detailed summary of the terms of such contract or agreement, including the name of the property owner and the agent involved in the sale.
  (c) The copy and report required by subsection (b) of this section shall be provided at least thirty days before any sale, exchange, transfer, purchase, lease-purchase, lease or rental of real property, refundings of lease-purchases, leases or rental agreements, construction of new buildings, and any other acquisition or lease of buildings, office space or grounds.
  (d) A contract or agreement that is for the lease purchase, lease or rental of real property, where the costs of real property acquisition and improvements are to be financed, in whole or in part, with bond proceeds, may contain a preliminary schedule of rents and leases for purposes of review by the committee.
  (e) For renewals of contracts or agreements required by this section to be reported, the Commission, Council or governing board shall provide a report setting forth a detailed summary of the terms of the contract or agreement, including the name of the property owner.
  (f) The Joint Committee on Government and Finance shall meet and review any contract, agreement or report within thirty days of receipt.
  (g) Each governing board shall provide to the Commission or Council, as appropriate, a copy of any contract or agreement submitted to the Joint Committee on Government and Finance pursuant to this section.
§18B-19-14. Authorization for sale lease-back.
  (a) Notwithstanding any other provision of this code to the contrary and upon approval of the Commission or Council, as appropriate, before incurring any obligation, a governing board may sell any building that is on unencumbered real property to which the board holds title and lease back the same building. The board may deposit the net proceeds of the transaction into a special revenue account in the State Treasury to be appropriated by the Legislature for the use of the institution at which the real property is located. Prior to such action, the board shall take the following steps:
  (1) Have the property appraised by two licensed appraisers and may not sell the property for less than the average of the two appraisals; and
  (2) Retain independent financial and legal services to examine fully all aspects of the transaction.
  (b) The sale may be made only to a special purpose entity that exists primarily for the purpose of supporting the institution at which the building is located.
§18B-19-15. Construction and operation of auxiliary facilities; fees for auxiliary enterprises.

  (a) A governing board may provide, construct, erect, improve, equip, maintain and operate auxiliary facilities, as defined in section two of this article, for students, employees and visitors on land it owns or leases.
  (b) The cost of construction, erection, improvement or equipment may be payable with the proceeds of revenue bonds authorized by this code or by any other financing method provided in this article.
  (c) A governing board may engage engineering, architectural, construction and other experts as it considers necessary, and may specify the payment and contract terms, which are included in the cost of the project.
  (d) A governing board may establish rules and charge fees for use of its facilities. The fees charged shall be structured so as to generate funds sufficient for the following purposes:
  (1) To maintain payment of the principal of and interest on any revenue bonds, and for reserves for the revenue bonds;
  (2) To operate the auxiliary enterprise;
  (3) To satisfy annual building renewal formula requirements; and
  (4) To build a reserve for major renovation or replacement.
  (e) All moneys collected for the use of auxiliary facilities shall be paid to the credit of and expended by that institution in accordance with the provisions of section thirteen, article ten of this chapter.
§18B-19-16. Condemnation generally.
  (a) The Commission, Council and governing boards each may acquire by condemnation land or buildings for the use and benefit of any state institution under its jurisdiction. Any condemnation proceeding conducted pursuant to this section is governed by chapter fifty-four of this code.
  (b) The Commission, Council and governing boards each may condemn any interest, right or privilege, land or improvement, which in its opinion is necessary, in the manner provided by law for the acquisition by this state of property for public purposes. The state is under no obligation to accept and pay for any property condemned and, in any event, may pay for the property only from the funds provided for that purpose.
  (c) In any proceeding to condemn, the order shall be made by the court having jurisdiction of the suit, action or proceedings. A bond or other security may be required by the court securing the property owner against any loss or damage to be sustained by reason of the state's failure to accept and pay for the property. The bond or security may not impose liability or debt on or of the state as contemplated by the provisions of the Constitution of the state in relation to state debt.
§18B-19-17. Legislative rule.
  The Commission and Council jointly shall propose a rule or rules for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, to implement the provisions of this article.
§18B-19-18. Reporting.
  (a) Beginning July 1, 2012, and annually thereafter, the Commission and Council shall provide a general status report to the Legislative Oversight Commission on Education Accountability on the progress being made in implementing the state-wide capital development plan and on the progress of the governing boards in implementing the objectives of institutions' campus development plans.
  (b) The process required by the Commission and Council for reporting by the governing boards shall be included in the rules required by section seventeen of this article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22. STATE LOTTERY ACT.
§29-22-18. State Lottery Fund; appropriations and deposits; not part of general revenue; no transfer of state funds after initial appropriation; use and repayment of initial appropriation; allocation of fund for prizes, net profit and expenses; surplus; State Lottery Education Fund; State Lottery Senior Citizens Fund; allocation and appropriation of net profits.

  (a) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the State Lottery Fund is continued. The fund consists of all appropriations to the fund and all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All revenues received from the sale of lottery tickets, materials and games shall be deposited with the State Treasurer and placed into the State Lottery Fund. The revenue shall be disbursed in the manner provided in this section for the purposes stated in this section and shall may not be treated by the State Auditor and State Treasurer as part of the general revenue of the state.
  (b) No An appropriation, loan or other transfer of state funds may not be made to the Commission or Lottery Fund after the initial appropriation.
  (c) A minimum annual average of forty-five percent of the gross amount received from each lottery shall be allocated and disbursed as prizes.
  (d) Not more than fifteen percent of the gross amount received from each lottery may be allocated to and may be disbursed as necessary for fund operation and administration expenses: Provided, That for the period beginning the first day of the month following the first passage of a referendum election held pursuant to section seven, article twenty-two-c of this chapter and for eighteen months thereafter, not more than seventeen percent of the gross amount received from each lottery shall be allocated to and may be disbursed as necessary for fund operation and administration expenses.
  (e) The excess of the aggregate of the gross amount received from all lotteries over the sum of the amounts allocated by subsections (c) and (d) of this section shall be allocated as net profit. In the event that the percentage allotted for operations and administration generates a surplus, the surplus shall be allowed to accumulate to an amount not to exceed $250,000. On a monthly basis, the director shall report to the Joint Committee on Government and Finance of the Legislature any surplus in excess of $250,000, and remit to the State Treasurer the entire amount of those surplus funds in excess of $250,000, which shall be allocated as net profit.
  (f) After first satisfying the requirements for funds dedicated to the School Building Debt Service Fund in subsection (h) of this section to retire the bonds authorized to be issued pursuant to section eight, article nine-d, chapter eighteen of this code, then satisfying the requirements for funds dedicated to the Education, Arts, Sciences and Tourism Debt Service Fund in subsection (i) of this section to retire the bonds authorized to be issued pursuant to section eleven-a, article six, chapter five of this code, and then satisfying the requirements for funds dedicated to the Community and Technical College Capital Improvement Fund in subsection (j) of this section to retire the bonds for community and technical college capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, and then satisfying the requirements for funds dedicated to the Higher Education Policy Commission Capital Improvement Fund in subsection (k) of this section to retire the bonds for college and university capital improvements authorized to be issued pursuant to section eight, article ten, chapter eighteen-b of this code, any and all remaining funds in the State Lottery Fund shall be made available to pay debt service in connection with any revenue bonds issued pursuant to section eighteen-a of this article, if and to the extent needed for such that purpose from time to time. The Legislature annually shall annually appropriate all of the remaining amounts allocated as net profits in subsection (e) of this section, in such the proportions as it considers beneficial to the citizens of this state, to: (1) The Lottery Education Fund created in subsection (g) of this section; (2) the School Construction Fund created in section six, article nine-d, chapter eighteen of this code; (3) the Lottery Senior Citizens Fund created in subsection (k) (l) of this section; and (4) the Division of Natural Resources created in section three, article one, chapter twenty of this code and the West Virginia Development Office as created in section one, article two, chapter five-b of this code, in accordance with subsection (l) (m) of this section. No A transfer to any account other than the School Building Debt Service Fund, the Education, Arts, Sciences and Tourism Debt Service Fund, the Community and Technical College Capital Improvement Fund, the Higher Education Policy Commission Capital Improvement Fund, the Economic Development Project Fund created under section eighteen-a, article twenty-two, chapter twenty-nine of this code, or any fund from which debt service is paid under subsection (c), section eighteen-a of this article may not be made in any period of time in which a default exists in respect to debt service on bonds issued by the School Building Authority, the State Building Commission, the Higher Education Policy Commission, the Economic Development Authority or which are otherwise secured by lottery proceeds. No An additional transfer may not be made to any account other than the School Building Debt Service Account, and the Education, Arts, Sciences and Tourism Debt Service Fund, and the Community and Technical College Capital Improvement Fund and the Higher Education Policy Commission Capital Improvement Fund when net profits for the preceding twelve months are not at least equal to one hundred fifty percent of debt service on bonds issued by the School Building Authority, the State Building Commission and the Higher Education Policy Commission which are secured by net profits.
  (g) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the Lottery Education Fund is continued. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which shall be deposited into the Lottery Education Fund by the State Treasurer. The Lottery Education Fund also shall also consist of all interest earned from investment of the Lottery Education Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Education Fund from any source. The revenues received or earned by the Lottery Education Fund shall be disbursed in the manner provided below in this section and may not be treated by the State Auditor and State Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Education Fund to the state system of public and higher education for these educational programs it considers beneficial to the citizens of this state.
  (h) On or before the twenty-eighth day of each month, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the School Building Debt Service Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code, as a first priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1994, as certified to the lottery director in accordance with the provisions of section six, article nine-d, chapter eighteen of this code. In no any event, shall the monthly amount allocated may not exceed $1.8 million, nor may the total allocation of the net profits to be paid into the School Building Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $18 million. In the event there are insufficient funds available in any month to transfer the amount required to be transferred pursuant to this subsection to the School Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $27 million annually, may be granted by the School Building Authority in favor of the bonds it issues which are secured by the net lottery profits. When the school improvement bonds, secured by profits from the lottery and deposited in the School Debt Service Fund, mature, the profits shall become available for debt service on additional school improvement bonds as a first priority from the net profits of the lottery or may at the discretion of the authority be placed into the School Construction Fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code.
  (i) Beginning on or before July 28, 1996, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Education, Arts, Sciences and Tourism Debt Service Fund created pursuant to the provisions of section eleven-a, article six, chapter five of this code, as a second priority from the net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued, or to be issued, on or after April 1, 1996, as certified to the lottery director in accordance with the provisions of that section. In no any event may the monthly amount allocated may not exceed $1 million, nor may the total allocation paid into the Education, Arts, Sciences and Tourism Debt Service Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Education, Arts, Sciences and Tourism Debt Service Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency. A second-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not to exceed $15 million annually, may be granted by the State Building Commission in favor of the bonds it issues which are secured by the net lottery profits.
  (j) Beginning on or before July 28, 2008, and continuing on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Community and Technical College Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after April 1, 2008, as certified by the lottery director in accordance with the provisions of that section. In no any event may the monthly amount allocated may not exceed $500,000, nor may the total allocation paid to the Community and Technical Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $5 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Community and Technical College Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.
  (1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $7.5 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues which are secured by the net lottery profits. When the bonds secured by the profits from the lottery and deposited in the Education, Arts, Sciences and Tourism Debt Service Fund as provided in subsection (i) of this section mature or are paid in full, the bonds issued by the Higher Education Policy Commission for which lottery profits are pledged as provided in this subsection shall be considered to have a second-in-priority lien on the net profits deposited in the State Lottery Fund.
  (2) When the community and technical college capital improvement bonds secured by profits from the lottery and deposited in the Community and Technical College Capital Improvement Fund mature, the profits shall become available for debt service on additional community and technical college capital improvement bonds, if approved by resolution of the Legislature, as a second priority from the net profits of the lottery.
  (3) The Council for Community and Technical College Education shall approve all community and technical college capital improvement plans prior to the distribution of bond proceeds.
  (k) Beginning on the twenty-eighth day of the month after the bonds secured by the profits from the lottery and deposited in the Education, Arts, Sciences and Tourism Debt Service Fund as provided in subsection (i) of this section mature or are paid in full and on or before the twenty-eighth day of each succeeding month thereafter, as long as revenue bonds or refunding bonds are outstanding, the lottery director shall allocate to the Higher Education Policy Commission Capital Improvement Fund, created pursuant to section eight, article ten, chapter eighteen-b of this code, as a third priority from net profits of the lottery for the preceding month, an amount equal to one tenth of the projected annual principal, interest and coverage ratio requirements on any and all revenue bonds and refunding bonds issued or to be issued, on or after May 1, 2009, as certified by the lottery director in accordance with the provisions of that section. In any event, the monthly amount allocated may not exceed $1 million, nor may the total allocation paid to the Higher Education Policy Commission Capital Improvement Fund, as provided in this section, in any fiscal year exceed the lesser of the principal and interest requirements certified to the lottery director or $10 million. In the event there are insufficient funds available in any month to transfer the amount required pursuant to this subsection to the Higher Education Policy Commission Capital Improvement Fund, the deficiency shall be added to the amount transferred in the next succeeding month in which revenues are available to transfer the deficiency.
__(1) A third-in-priority lien on the proceeds of the State Lottery Fund up to a maximum amount equal to the projected annual principal, interest and coverage ratio requirements, not exceeding $15 million annually, may be granted by the Higher Education Policy Commission in favor of the bonds it issues under this subsection and which are secured by the net lottery profits.
__
(2) When the college and university capital improvement bonds secured by profits from the lottery and deposited in the Higher Education Policy Commission Capital Improvement Fund mature, the profits shall become available for debt service on additional college and university capital improvement bonds, if approved by resolution of the Legislature, as a third priority from the net profits of the lottery.
__
(3) The Higher Education Policy Commission shall allocate at least thirty percent of funds generated from the sale of bonds pursuant to this subsection equally between the state's two doctoral degree-granting universities to further the objective of developing greater research capacity set forth in subdivision (8), subsection (b), section three, article one-d of this chapter.
__
(k) (l) There is continued a The special revenue fund in the State Treasury which shall be is designated and known as the Lottery Senior Citizens Fund is continued. The fund shall consist of the amounts allocated pursuant to subsection (f) of this section, which amounts shall be deposited into the Lottery Senior Citizens Fund by the State Treasurer. The Lottery Senior Citizens Fund also shall also consist of all interest earned from investment of the Lottery Senior Citizens Fund and any other appropriations, gifts, grants, contributions or moneys received by the Lottery Senior Citizens Fund from any source. The revenues received or earned by the Lottery Senior Citizens Fund shall be distributed in the manner provided below in this subsection and may not be treated by the State Auditor or State Treasurer as part of the general revenue of the state. Annually, the Legislature shall appropriate the revenues received or earned by the Lottery Senior Citizens Fund to any senior citizens medical care and other programs it considers beneficial to the citizens of this state.
  (l) (m) The Division of Natural Resources and the West Virginia Development Office, as appropriated by the Legislature, may use the amounts allocated to them pursuant to subsection (f) of this section for one or more of the following purposes:
  (1) The payment of any or all of the costs incurred in the development, construction, reconstruction, maintenance or repair of any project or recreational facility, as these terms are defined in section four, article five, chapter twenty of this code, pursuant to the authority granted to it under said article;
  (2) The payment, funding or refunding of the principal of, interest on or redemption premiums on any bonds, security interests or notes issued by the parks and recreation section of the Division of Natural Resources under article five, chapter twenty of this code; or
  (3) The payment of any advertising and marketing expenses for the promotion and development of tourism or any tourist facility or attraction in this state."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2961 - "A Bill to repeal §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18- 23-5, §18-23-13, §18-23-14, §18-23-15, §18-23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended; to repeal §18B-14-1, §18B-14-2, §18B-14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code; to amend and reenact §5-6-4a of said code; to amend and reenact §18B-1B-4 of said code; to amend said code by adding thereto a new section, designated §18B-1D-9; to amend and reenact §18B-2A-1 and §18B-2A-4 of said code; to amend and reenact §18B-2B-6 of said code; to amend and reenact §18B-4-6 of said code; to amend and reenact §18B-5-4 of said code; to amend and reenact §18B-10-8 of said code; to amend said code by adding thereto a new article, designated §18B-19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18; and to amend and reenact §29-22-18 of said code, all relating to the administration of institutions of higher education in West Virginia generally; requiring training and development opportunities for members of the Higher Education Policy Commission, the Council for Community and Technical College Education and the institutional governing boards; revising criteria for membership of certain institutional governing boards; requiring the governor to consider certain factors and seek a certain balance when appointing members; higher education capital facilities generally; higher education purchasing generally; capital project planning, financing, management and maintenance; acquisition, sale, transfer, exchange, lease, conveyance and condemnation of real property; construction and operation of capital facilities; collection and use of certain capital fees; establishing in the State Treasury a special revenue fund known as the Higher Education Policy Commission Capital Improvement Fund; directing the use of certain lottery proceeds; establishing in the State Treasury a capital maintenance fund for each state institution of higher education; legislative intent; defining terms; systemwide facilities planning; institution facilities planning; and making technical changes."
  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Armstead asked and obtained unanimous consent that the remarks of Delegates Anderson and C. Miller regarding Com. Sub. for H. B. 2961 be printed in the Appendix to the Journal.
  At 2:42 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 4:00 p.m., and reconvened at that time.
  Still being in possession of the Clerk, Com. Sub. For H. B. 2968, Requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems, was taken up for further consideration.
  At the request of Delegate Boggs, and by unanimous consent, the House of Delegates proceeded to reconsider its earlier action in refusing to concur in the Senate amendments.
  On motion of Delegate Boggs, the House of Delegates then 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. 424), 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. 2968) passed.
  Delegate Boggs moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 425), 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 (Com. Sub. for H. B. 2968) takes effect from its passage.
  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. 249, Relating to annual school calendar.
  On motion of Delegate Boggs, 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 five 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 Pethtel, Perry, Ennis, Rowan and Romine.
  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 concurrence in the amendment of the House of Delegates, with a title amendment, and the passage, as amended, of
  Com. Sub. for S. B. 172, Authorizing Department of Administration promulgate legislative rules.
  On motion of Delegate Boggs, the bill was taken up for immediate consideration.
  The following Senate title amendment was reported by the Clerk:
  Com. Sub. for S. B. 172 - "A Bill to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rule with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rule with various modifications presented to and recommended by the Legislative Rule- Making Review Committee and as amended by the Legislature; repealing certain legislative rule; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to general provisions; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Teachers Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Public Employees Retirement System; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to refund, reinstatement, retroactive service and loan interest factors; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to service credit for accrued and unused sick and annual leave; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the West Virginia State Police; authorizing the Consolidated Public Retirement Board to promulgate a legislative rule relating to the Deputy Sheriff Retirement System; authorizing the Division of Personnel to promulgate a legislative rule relating to reimbursement of compensation paid to state employees for training, education and professional development; authorizing the Department of Administration to promulgate a legislative rule relating to the Purchasing Division; authorizing the Department of Administration to promulgate a legislative rule relating to fair market price determination; authorizing the Department of Administration to promulgate a legislative rule relating to statewide contracts; authorizing the Department of Administration to promulgate a legislative rule relating to qualifications for participation; authorizing the Department of Administration to promulgate a legislative rule relating to parking; authorizing the Ethics Commission to promulgate a legislative rule relating to the purchase, sale or lease of personal property; authorizing the Ethics Commission to promulgate a legislative rule relating to interest in public contracts; authorizing the Ethics Commission to repeal a legislative rule relating to voting; authorizing the Ethics Commission to promulgate a legislative rule relating to employment exemptions; authorizing the Ethics Commission to promulgate a legislative rule relating to lobbying; and authorizing the Ethics Commission to promulgate a legislative rule relating to the filing of verified time records."
  On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 426), and there were--yeas 96, nays 4, absent and not voting none, with the nays and absent and not voting being as follows:
  Nays: Andes, Armstead, Lane and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 172) passed.
  Delegate Boggs moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 427), 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 (Com. Sub. for S. B. 172) takes effect from its passage.
  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 the adoption of the report of the Committee of Conference on and the passage, as amended by said report, of
  S. B. 445, Removing conservation supervisors' election certification requirements.
Conference Committee Report

  Delegate Hunt, from the Committee of Conference on matters of disagreement between the two houses, as to
  S. B. 445, Removing conservation supervisors' election certification requirements,
  Submitted the following report, which was received:
  Your Committee of Conference on the disagreeing votes of the two houses as to the amendment of the House to Engrossed Senate Bill No. 445 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
  That the House recede from its position as to its amendment to the bill.
  And,
  That the Senate and House agree to an amendment as follows:
  On page two, section six, by striking out subsection (b) in its entirety and inserting in lieu thereof a new subsection (b) to read as follows:
  "(b) A candidate for supervisor must be a landowner and an active farmer with a minimum of five years experience or a retired farmer who has had a minimum of five years experience and must have the education, training and experience necessary to carry out the duties required by this article. The State Conservation Committee shall proposes for promulgation in accordance with the requirements of article three-a, chapter twenty-nine of this code legislative rules to establish criteria for the necessary education, training and experience."
  Respectfully submitted,
  Bob Williams,
Mark Hunt,  

  Herb Snyder,
Robert C. Tabb,

  Karen L. Facemyer,                          
Bill Hamilton,

Conferees on the part                       
Conferees on the part

   of the Senate
.
of the House of Delegates.

  The bill, as amended by said report, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 428), and there were--yeas 100, nays none.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 445) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from th e Senate

  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 3314, Relating to concealed handgun licensing.        
  On motion of Delegate Boggs, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page six, section four, line seventy-six, by striking out the words "which shall" and inserting in lieu thereof a comma and the words "including a nationwide criminal background check, in order to".
  On page six, section four, line seventy-eight, by striking out the word "are" and inserting in lieu thereof the word "is".
  On page fourteen, section six-a, lines six and seven, by striking out all of subdivision (1).
  And,
  By renumbering the remaining subdivisions.
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 3314 - "A Bill to amend and reenact §61-7-4 and §61-7-6a of the Code of West Virginia, 1931, as amended, all relating to concealed handgun licensing generally; clarifying scope of license; clarifying that the investigation necessary for licensure shall include a nationwide criminal background check; requiring reissue application to be ruled on within forty-five days; eliminating social security number from issued license; related to the honoring of concealed handgun licenses issued by another state; eliminating requirement that a person holding a concealed handgun license from a reciprocating state be a resident of that state and requiring that a potential reciprocating state's licensure standards be similar to or greater than those of this state."
  On motion of Delegate Boggs, 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. 429), and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
  Nays: Brown, Guthrie, Webster and Wells.
 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. 3314) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

-Continued-

  Com. Sub. for S. B. 99, Sentencing discretion for certain youthful offenders; 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. 430), 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 (Com. Sub. for S. B. 99) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 258, Clarifying local fiscal bodies cannot be held liable for certain deficits; 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. 431), 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 (Com. Sub. for S. B. 258) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 280, Creating Correctional Industries Act of 2009; 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. 433), 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 (Com. Sub. for S. B. 280) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 280 - "A Bill to repeal §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28- 5B-5, §28-5B-6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25- 7-13, §25-7-14, §25-7-15, §25-7-16 and §25-7-17, all relating to enacting the Correctional Industries Act of 2009; authorizing the Commissioner of the Division of Corrections to enter into correctional industries contracts, develop a marketing plan, create catalogues and a website and determine prices; purchasing inmate-made articles and products by state agencies mandatory; providing exceptions; creating the Correctional Industries Account; prohibiting sale of inmate-made goods on the open market; providing penalties; authorizing the establishment of prison industry enhancement certification programs pursuant to Title 18 U. S. C. §1761(c); providing for agreements between private entities and the commissioner or the director of the Division of Juvenile Services to establish the federal programs; providing for the contents of the agreements; and updating certain terms."
  Delegate Boggs moved that the bill take effect July 1, 2009.
  On this question, the yeas and nays were taken (Roll No. 434), 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 (Com. Sub. for S. B. 280) takes effect July 1, 2009.
  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. 293, Creating felony offense of unauthorized practice of certain health care professions; 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. 435), 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 (Com. Sub. for S. B. 293) 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. 293 - "A Bill to amend and reenact §30-3-13 of the Code of West Virginia, 1931, as amended, relating to unauthorized practice of medicine and surgery or podiatry or as a physician assistant; criminal penalties; reducing the amount of fine for a person practicing on an expired, lapsed or terminated license for less than ninety days; and specifying as a felony the intentional unauthorized practice of medicine and surgery or podiatry or as a physician assistant in all other instances."
Messages from the Senate

  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
  Com. Sub. for S. B. 373, Relating to PROMISE Scholarship.
  On motion of Delegate Boggs, 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 five 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 William, Beach, Doyle, Romine and Anderson.
  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 that the Senate had agreed to the appointment of Committee of Conference of five from each house on the disagreeing votes of the two houses and had agreed to the appointment of two additional conferees on the part of the Senate as to
  Com. Sub. for H. B. 2836, School Innovation Zones Act,
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Foster and Boley.
Third Reading

-Continued-

  S. B. 302, Expanding municipal parking authority officers' ticketing powers; on third reading, coming up in regular order, with an amendment pending, was, on motion of Delegate Boggs, placed at the foot of bills on third reading.
  S. B. 306, Increasing pipeline companies' special license fees to Public Service Commission; on third reading, coming up in regular order, was read a third time.
  Delegate Armstead requested to be excused from voting on the passage of S. B. 306 under the provisions of House Rule 49.
  The Speaker replied that Delegate Armstead was a member of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Gentleman from voting.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 436), and there were--yeas 95, nays 5, absent and not voting none, with the nays being as follows:
  Nays: Blair, Louisos, McGeehan, Porter and Sumner.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 306) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 306 - "A Bill to amend and reenact §24B-5-3 of the Code of West Virginia, 1931, as amended, relating to pipeline companies paying a special license fee to the Public Service Commission; and increasing the maximum amount of revenue from $300,000 per annum to $315,000 per annum."
  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. 318, Expanding Division of Protective Services' law-enforcement authority over state property under certain circumstances; 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. 437), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
  Nays: C. Miller.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 318) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 339, Exempting certain licensed medical professionals from county hiring prohibition; on third reading, coming up in regular order, was, on motion of Delegate Boggs placed at the foot of bills on third reading.
  S. B. 344, Authorizing mental hygiene commissioners sign readmission orders; 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. 438), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
  Nays: Lane.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 344) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for S. B. 375, Relating to Office of Coalfield Community Development master land use plans; on third reading, coming up in regular order, was, on motion of Delegate Boggs placed at foot of the calendar.
  At 2:40 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 7:30 p.m., and reconvened at that time.
Conference Committee Report Availability

  At 7:37 p.m., the Clerk announced availability in his office of the reports of the Committees of Conference on Com. Sub. for S. B. 767 and Com. Sub. for H. B. 3877.
Messages from the Senate

  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
  Com. Sub. for H. B. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Minard, Oliverio and Barnes.
  On motion of Delegate Boggs, 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 Brown, Barker and Sobonya.
  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 passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2485, Allowing pharmacy interns to vend pseudoephedrine and other chemical precursors of methamphetamine.
  On motion of Delegate Boggs, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page three, section three, after line twenty-two, by inserting a new subdivision, designated subdivision (f), to read as follows:
  "(f) 'Law enforcement agencies' means and is limited to:
  (1) The state police and its members;
  (2) A county sheriff and his or her law-enforcement deputies;
  (3) A police department in any municipality as defined in section two, article one, chapter eight of this code; and
  (4) A federal DEA official who is investigating the manufacture or distribution of methamphetamine."
  And relettering the remaining subdivisions;
  And,
  On page twelve, section eight, after line twenty-three, by adding a new subsection, designated subsection (d), to read as follows:
  "(d) Law enforcement agencies shall have access to the central repository to determine those individuals who are purchasing a drug product containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or other designated precursor that may be used along with other substances as a component in the production and distribution of illegal methamphetamine in an amount greater than the amount legally allowed."
  And by amending the title of the bill to read as follows:
  H. B. 2485 - "A Bill to amend and reenact §60A-10-3, §60A-10-4, §60A-10-5 and 60A-10-8 of the Code of West Virginia, 1931, as amended, all relating to persons who may sell pseudoephedrine and other chemical precursors of methamphetamine; and clarifying law enforcement may have access to the central repository."

  On motion of Delegate Boggs, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
  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 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
  Com. Sub. for H. B. 2621, Prohibiting the use of cell phone and text-messaging devices while operating a motor vehicle except when using a hands-free device or in the case of an emergency.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Browning, Stollings and Barnes.
  On motion of Delegate Boggs, 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 Brown, Miley and Lane.
  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 recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses as to
  Com. Sub. for H. B. 2832, Relating to critical skills evaluations for students in grades three and eight.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Oliverio, Browning, Edgell, Guills and Barnes.
  On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a Committee of Conference of five 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 M. Poling, Marshall, Shaver, Rowan, and Evans.
  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 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
  H. B. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Jenkins, Laird and Hall.
  On motion of Delegate Boggs, 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 Fleischauer, Frazier and Ellem.
  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 recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses as to
  Com. Sub. for H. B. 2961, Adding two members to the institutional boards of governors of West Virginia University and Marshall University based upon race, gender and ethnicity.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Plymale, Wells, Oliverio, Green and Guills.
  On motion of Delegate Boggs, the House of Delegates agreed to the appointment of a Committee of Conference of five 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 Kominar, Williams, Mahan, Romine and Anderson.
  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 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
  Com. Sub. for H. B. 3146, Relating to seniority rights for school service personnel.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators White, Stollings and Barnes.
  On motion of Delegate Boggs, 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 M. Poling, Ennis and Rowan.
  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
  Com. Sub. for S. B. 498, Relating to early childhood education.
  On motion of Delegate Boggs, 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 five 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 Varner, M. Poling, Perry, Ireland and Anderson.
  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 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
  Com. Sub. for S. B. 414, Relating to Pharmaceutical Cost Management Council and health care delivery systems.
  On motion of Delegate Boggs, 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 Perdue, Wooton and Border.
  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 concurrence in the amendment of the House of Delegates and the passage, as amended, of
  Com. Sub. for S. B. 278, Creating felony offense of willful failure to provide certain drug benefits,
  S. B. 322, Exempting certain life insurance policies from Medicaid assignment,
  Com. Sub. for S. B. 326,Mandating certain dental anesthesia insurance coverage,
  S. B. 347, Correcting code reference related to extended supervision for certain sex offenders,
  Com. Sub. for S. B. 470, Regulating all-terrain vehicles on Hatfield-McCoy Trail,
  S. B. 481, Requiring employers provide certain documentation to Public Employees Insurance Agency,
  Com. Sub. for S. B. 552, Relating to affordable health insurance plan proposals,
  And,
  Com. Sub. for S. B. 641, Disclosing solid waste origins at commercial landfills.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the title amendment of the House of Delegates and the passage, as amended, of
  S. B. 425, Disclosing certain refinanced loan's higher annual percentage rate.
Conference Committee Report

  Delegate Paxton, from the Committee of Conference on matters of disagreement between the two houses, as to
  Com. Sub. for H. B. 3208, Including the hours of training county board members have acquired,
  Submitted the following report, which was received.
  Your Committee of Conference on the disagreeing votes of the two houses on the amendment of the Senate to H. B. 3208, having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
  That both houses recede from their respective positions as to the amendment of the Senate striking out everything after the enacting section and inserting new language, and agree to the same as follows:
"ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-4. Better schools accountability; school, school district and statewide school report cards.

               (a) For the purpose of providing information to the parents of public school children and the general public on the quality of education in the public schools which is uniform and comparable between schools within and among the various school districts, the state board shall prepare forms for school, school district and statewide school report cards and shall promulgate rules concerning the collection and reporting of data and the preparation, printing and distribution of report cards under this section. The forms shall provide for brief, concise reporting in nontechnical language of required information. Any technical or explanatory material a county board wishes to include shall be contained in a separate appendix available to the general public upon request.
               (b) The school report cards shall include information as shall be prescribed by lawfully promulgated rule by the state board to give the parents of students at the school and the general public an indication of the quality of education at the school and other programs supportive of community needs, including, but not limited to, the following:
               (1) Indicators of student performance at the school in comparison with the county, state, regional and national student performance, as applicable, including student performance by grade level in the various subjects measured pursuant to a uniform statewide assessment program adopted by the state board; school attendance rates; the percent of students not promoted to next grade; and the graduation rate;
               (2) Indicators of school performance in comparison with the aggregate of all other schools in the county and the state, as applicable, including average class size; percent of enrollments in courses in high school mathematics, science, English and social science; amount of time per day devoted to mathematics, science, English and social science at middle, junior high and high school grade levels; percentage distribution of students by career cluster as indicated on the individualized student transition plan; pupil-teacher ratio; number of exceptions to pupil-teacher ratio requested by the county board and the number of exceptions granted; the number of split-grade classrooms; pupil-administrator ratio; operating expenditure per pupil; county expenditure by fund in graphic display; and the average degree classification and years of experience of the administrators and teachers at the school;
               (3) The names of the members of the local school improvement council, created pursuant to section two, article five-a of this chapter; and
               (4) The name or names of the business partner or partners of the school.
           In addition, every county board shall annually shall determine the number of administrators, classroom teachers and service personnel employed that exceeds the number allowed by the public school support plan and determine the amount of salary supplements that would be available per state authorized employee if all expenditures for the excess employees were converted to annual salaries for state authorized administrators, classroom teachers and service personnel within their county. The information shall be published annually in each school report card of each such county.
               (c) The school district report card shall include the data for each school for each separately listed applicable indicator and the aggregate of the data for all schools, as applicable, in the county for each indicator. The statewide school report card shall include the data for each county for each separately listed indicator and the aggregate for all counties for each indicator.
               (d) The report cards shall be prepared using actual local school, county, state, regional and national data indicating the present performance of the school and shall also shall include the state norms and the upcoming year's targets for the school and the county board.
               The state board shall provide technical assistance to each county board in preparing the school and school district report cards.
               Each county board shall prepare report cards in accordance with the guidelines set forth in this section. The school district report cards shall be presented at a regular school board meeting subject to applicable notice requirements and shall be made available to a newspaper of general circulation serving the district. The school report cards shall be mailed directly to the parent or parents of any each child enrolled in that school. In addition, each county board shall submit the completed report cards to the state board which shall make copies available to any person requesting them.
               The report cards shall be completed and disseminated prior to January 1, 1989, and in each year thereafter, and shall be based upon information for the current school year, or for the most recent school year for which the information is available, in which case the year shall be clearly footnoted.
               (e) In addition to the requirements of subsection (c) of this section, the school district report card shall list the following information:
               (1) The names of the members of the county board, the dates upon which their terms expire and whether they have attended an orientation program for new members approved by the state board and conducted by the West Virginia School Board Association or other approved organizations; and other school board member training programs
_______________(2) The number of hours of training that meets state board standards that county board members have received during the school term reported
; and
               (2) (3) The names of the county school superintendent and every assistant and associate superintendent and any training programs related to their area of school administration which they have attended.
               The information shall also shall be reported by district in the statewide school report card.
          (f) The state board shall develop and implement a separate report card for nontraditional public schools pursuant to the appropriate provisions of this section to the extent practicable.
ARTICLE 4. COUNTY SUPERINTENDENT OF SCHOOLS.
§18-4-1. Election and term; interim superintendent.

               (a) The county superintendent shall be appointed by the board upon a majority vote of the members thereof to serve for a term of not less than one, nor more than four years. At the expiration of the term or terms for which he or she shall have been appointed, each county superintendent shall be eligible for reappointment for additional terms of not less than one, nor more than four years. Provided, That
          _____(1) At the expiration of his or her term or terms of service the county superintendent may transfer to any teaching position in the county for which he or she is qualified and has seniority, unless dismissed for statutory reasons.
          _____(2) The appointment of the county superintendent shall be made on or before between January 1 and June 1 for a term beginning on July 1 following the appointment.
               (b) A county superintendent who fills a vacancy caused by an incomplete term shall be appointed to serve until the following July 1: Provided, however, That the board may appoint an interim county superintendent to serve for a period not to exceed one hundred twenty days from the occurrence of the vacancy. In the event of a vacancy in the superintendent's position that results in an incomplete term, the board may appoint an interim county superintendent:
_______________(1) To serve until the following July 1 if the vacancy occurs before March 1.
_______________(2) To serve until July 1 of the next following year if the vacancy occurs on or after March 1, unless a superintendent is appointed sooner.
_______________(c) If the superintendent becomes incapacitated due to accident or illness to an extent that may lead to prolonged absence, the county board, by unanimous vote, may enter an order declaring that an incapacity exists in which case the county board shall appoint an acting superintendent to serve until a majority of the members of the board determine that the incapacity no longer exists. An acting superintendent may not serve in that capacity for more than one year, nor later than the expiration date of the superintendent's term, whichever occurs sooner, unless he or she is reappointed by the county board.

               (c) (d) Immediately following the appointment of a county superintendent or an interim county superintendent, the president of the county board immediately upon the appointment of the county superintendent, or the appointment of an interim county superintendent, shall certify the appointment to the state superintendent. Immediately following the appointment of an acting county superintendent or a vote by a majority of the members of the county board that an incapacity no longer exists, the president of the county board shall certify the appointment, reappointment, or appointment termination of the acting superintendent to the state superintendent.
_______________
(d) (e) During his or her term of appointment, the county superintendent shall be a state resident of the and shall reside in the county which he or she serves or of in a contiguous county. in this state, which he or she serves The county superintendent in office on the effective date of this section shall continue in office until the expiration of his or her term.
§18-4-4. Compensation.
               On or before the first day of May June 1 of the year in which the superintendent is appointed, the board shall fix the annual salary of the superintendent for the period of appointment for the term beginning on the following July 1. The board shall pay the salary from the general current expense fund of the district.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members; training requirements.
               
(a) No person shall be eligible for membership on any county board who is not a citizen, resident in such county, or who accepts a position as teacher or service personnel in the school district in which he or she is a resident or who is an elected or an appointed member of any political party executive committee, or who becomes a candidate for any other office than to succeed oneself.
               
(b) No member or member-elect of any board shall be eligible for nomination, election or appointment to any public office, other than to succeed oneself, or for election or appointment as a member of any political party executive committee, unless and until after that membership on the board, or his status as member-elect to the board, has been terminated at or before the time of his filing for such nomination for, or appointment to, such public office or committee: Provided, That 'office' or 'committee', as used in this subsection and subsection (a) of this section, does not include service on any board, elected or appointed, profit or nonprofit, for which the person does not receive compensation and whose primary scope is not related to the public schools.
          
_____(a) A person who is a candidate for membership on a county board or who is a member or member-elect of a county board:
__________
_____(1) Shall be a citizen and resident in the county in which he or she serves or seeks to serve on the county board;
__________
_____(2) May not be employed by the county board on which he or she serves or seeks to serve, including employment as a teacher or service person;
__________
_____(3) May not engage in the following political activities:
__________
(A) Become a candidate for or hold any other public office, other than to succeed him or herself as a member of a county board subject to the following:
__________(i) A candidate for a county board, who is not currently serving on a county board, may hold another public office while a candidate if he or she resigns from the other public office prior to taking the oath of office as a county board member.
_______________(ii) The term 'public office' as used in this section does not include service on any other board, elected or appointed, profit or nonprofit, under the following conditions:
__________
_____(I) The person does not receive compensation; and
__________
(II) The primary scope of the board is not related to public schools.

          _____(B) Become a candidate for, or serve as, an elected member of any political party executive committee;
__________
_____(C) Become a candidate for, or serve as, a delegate, alternate or proxy to a national political party convention;
__________
_____(D) Solicit or receive political contributions to support the election of, or to retire the campaign debt of, any candidate for partisan office;
__________
_____(4) May engage in any or all of the following political activities:
__________
_____(A) Make campaign contributions to partisan or bipartisan candidates;
__________
_____(B) Attend political fund raisers for partisan or bipartisan candidates;
__________
_____(C) Serve as an unpaid volunteer on a partisan campaign;
__________
_____(D) Politically endorse any candidate in a partisan or bipartisan election; or
__________
_____(E) Attend a county, state or national political party convention.
_______________
(c) (b) A member or member-elect of a county board, or a person desiring to become a member of a county board, may make a written request to the West Virginia Ethics Commission for an advisory opinion on whether to determine if another elected or appointed position held or sought by the person is an office or public office which would bar serving service on the a county board pursuant to subsections subsection (a) and (b) of this section.
               (1) Within thirty days of receipt of the request, the Ethics Commission shall issue a written advisory opinion in response to the request and shall also shall publish such the opinion in a manner which, to the fullest extent possible, does not reveal the identity of the person making the request.
          _____(2) Any A county board member who relied relies in good faith upon an advisory opinion issued by the West Virginia Ethics Commission to the effect that holding a particular office or public office is not a bar from membership on a county board of education and against whom proceedings are subsequently brought for removal from the county board on the basis of holding such that office or offices shall be is entitled to reimbursement by the county board for reasonable attorney's fees and court costs incurred by the member in defending against such these proceedings, regardless of the outcome of the proceedings.
          _____(3) Further, no A vote cast by the member at a meeting of the county board shall may not be invalidated due to a subsequent finding that holding the particular office or public office is a bar to membership on the county board.
          _____(4) Good faith reliance on a written advisory opinion of the West Virginia Ethics Commission that a particular office or public office is not a bar to membership on a county board of education is an absolute defense to any civil suit or criminal prosecution arising from any proper action taken within the scope of membership on the county board, becoming a member-elect of the county board or seeking election to the county board.
               (d) (c) Any person who is elected or appointed To be eligible for election or appointment as a member of a county board on or after May 5, 1992, a person shall possess at least a high school diploma or a general educational development (GED) diploma. Provided, That This provision shall does not apply to members or members-elect who have taken office prior to May 5, 1992, and who serve continuously therefrom from that date forward.
               (e) (d) No A person elected to a county board after July 1, 1990, shall may not assume the duties of county board member unless he or she has first attended and completed a course of orientation relating to boardsmanship and governance effectiveness which shall be given between the date of election and the beginning of the member's term of office Provided, That under the following conditions:
_______________
(1) A portion or portions of subsequent training such as that offered in orientation may be provided to members after they have commenced their term of office; Provided, however, That
               
(2) Attendance at the session of orientation given between the date of election and the beginning of the member's term of office shall permit such member or members permits the member-elect to assume the duties of county board member, as specified in this section;
               (3) Members appointed to the county board shall attend and complete the next such course offered following their appointment; Provided further, That and
_______________
(4) The provisions of this section subsection relating to orientation shall do not apply to members who have taken office prior to July 1, 1988, and who serve continuously therefrom from that date forward.
               (f) Commencing on the effective date of this section, members
          
_____(e) Annually, each member of a county board shall annually receive seven clock hours of training in areas relating to boardsmanship, governance effectiveness, and school performance issues including, but not limited to, pertinent state and federal statutes such as the 'Process for Improving Education' set forth in section five, article two-e of this chapter and the 'No Child Left Behind Act' and their respective administrative rules. Such
               
(1) The orientation and training shall be approved by the state board and conducted by the West Virginia School Board Association or other organization or organizations approved by the state board: Provided, That
               
(A) The state board may exclude time spent in training on school performance issues from the requisite seven hours herein required; Provided, however, That and
_______________
(B) If the state board elects to exclude time spent in training on school performance issues from the requisite seven hours, such training shall be limited by the state board the state board shall limit the training to a feasible and practicable amount of time.
               (2) Failure to attend and complete such an the approved course of orientation and training relating to boardsmanship and governance effectiveness without good cause as determined by the state board by duly promulgated legislative rules of the state board shall constitute constitutes neglect of duty under section seven, article six, chapter six of this code.
               (g) In the final year of any four-year term of office, a member shall satisfy the annual training requirement before January 1. The state board shall petition the circuit court of Kanawha County to remove any county board member who has failed to or who refuses to attend and complete the approved course of orientation and training. If the county board member fails to show good cause for not attending the approved course of orientation and training, the court shall remove the member from office. Failure to comply with the training requirements of this section without good cause as defined by the state board by duly promulgated legislative rules constitutes neglect of duty under section seven, article six, chapter six of this code.
_______________(h) The state board shall appoint a committee named the 'county board member training standards review committee' whose members shall meet at least annually. Subject to state board approval, the committee shall determine which particular trainings and training organizations shall be approved and whether county board members have satisfied the annual training requirement. Members of the committee serve without compensation, but may be reimbursed by their agencies or employers for all reasonable and necessary expenses actually incurred in the performance of their duties under this subsection."
               And,
               That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
               Com. Sub. H. B. 3208- "A Bill to amend and reenact §18-2E-4 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-4-1 and §18-4-4 of said code; and to amend and reenact §18-5-1a of said code, all relating to reporting hours of certain training received by county board members on county report card; clarifying eligibility for county board of education generally; providing for appointment and term of interim county superintendents to fill vacancies; providing for appointment and terms of acting county superintendents under certain circumstances; requiring certification to state superintendent of certain appointments, reappointments and appointment terminations; modifying deadline for setting annual compensation of county superintendents; establishing county board member training standards review committee; providing for member appointments, duties and certain expenses under certain circumstances; clarifying eligibility requirements for candidates, members and members-elect of county boards of education; prohibiting certain political activities and clarifying which political activities are permissible; removing certain duty of state board of education regarding members of county boards of education; making technical clarifications of current law; authorizing candidates for county boards of education to hold public office until taking the oath of office as members of county boards; adding definition of neglect of duty; making other technical changes; and clarifying terms."
                                              Respectfully submitted,
  Brady Paxton,
Randy White,

Ron Fragale,
Michael A. Oliverio, II,

  Linda Sumner,
     
Jesse O. Guills,

  Conferees on the part of    
Conferees on the part of

the House of Delegates. 
the Senate.

  The bill, as amended by said report, was then put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 439), and there were--yeas 83, nays 17, absent and not voting none, with the nays being as follows:
  Nays: Andes, Armstead, Ashley, Blair, Border, Carmichael, Duke, Ellem, Ireland, Lane, McGeehan, C. Miller, J. Miller, Overington, Schoen, Sobonya and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3208) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from the Senate

  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2309, Updating the law governing the practice of occupational therapy.
  On motion of Delegate Boggs, 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 §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §30-28- 19, §30-28-20 and §30-28-21, all to read as follows:
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-1. Short title.
  This article is known and may be cited as the 'West Virginia Occupational Therapy Practice Act.'
§30-28-2. Applicable law.
  The practices licensed under the provisions of this article and the West Virginia Board of Occupational Therapy are subject to the provisions of article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-28-3. Definitions.
  As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
  (a) 'Association' means the West Virginia Occupational Therapy Association.
  (b) 'Board' means the West Virginia Board of Occupational Therapy.
  (c) 'Business entity' means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity doing business in the State of West Virginia.
  (d) 'Client-related tasks' means tasks which are related to treatment and which, when performed by an occupational therapy aide, must be performed under direct supervision, including routine transfers, routine care of a patient's personal needs during the course of treatment, execution of an established routine activity or exercise, and assisting the supervising occupational therapist or occupational therapy assistant as directed during the course of treatment.
  (e) 'Direct supervision' means the actual physical presence of a licensed supervising occupational therapist or licensed occupational therapy assistant, and the specific delineation of tasks and responsibilities for personally reviewing and interpreting the results of any habilitative or rehabilitative procedures conducted by the limited permit holder, occupational therapy student, or aide. Direct supervision includes direct close supervision and direct continuous supervision.
  (f) 'Direct close supervision' means the licensed supervising occupational therapist or licensed occupational therapy assistant is in the building and has daily direct contact at the site of work.
  (g) 'Direct continuous supervision' means the licensed supervising occupational therapist or licensed occupational therapy assistant is physically present and in direct line of sight of the occupational therapy student or aide.
  (h) 'General supervision' means initial direction and periodic inspection of the activities of a licensed occupational therapist assistant by the supervising licensed occupational therapist, but does not necessarily require constant physical presence on the premises while the activities are performed.
  (i) 'License' means a valid and current license issued by the board under the provisions of this article.
  (j) 'Nonclient-related tasks' means tasks which are not related to treatment and do not require independent clinical reasoning, including clerical and maintenance activities, housekeeping, preparation of the work area or equipment, transporting patients, and ordering supplies, and which, when performed by an occupational therapy aide, must be performed under general supervision.
  (k) 'Occupational Therapist' means a person licensed by the board under the provisions of this article to engage in the practice of occupational therapy.
  (l) 'Occupational Therapy Assistant' means a person licensed by the board under the provisions of this article to assist in the practice of occupational therapy under the general supervision of an Occupational Therapist.
  (m) 'Occupational Therapy Aide' means a person who may provide nonclient-related tasks under general supervision, or specifically delegated client-related tasks, subject to the conditions set forth in subsection (f), section four of this article, under direct supervision of an Occupational Therapist or an Occupational Therapy Assistant, in accordance with the provisions of this article.
  (n) 'The practice of occupational therapy' means the therapeutic use of everyday life activities or occupations to address the physical, cognitive, psychosocial, sensory, and other aspects of performance of individuals or groups of individuals, including those who have or are at risk for developing an illness, injury, disease, disorder, condition, impairment, disability, activity limitation or participation restriction, to promote health, wellness and participation in roles and situations in home, school, workplace, community and other settings.
§30-28-4. Scope of practice; license and supervision requirements.
  (a) The scope of practice of occupational therapy includes, but is not limited to:
  (1) Methods or strategies selected to direct the process of interventions such as:
  (A) Establishment, remediation, or restoration of a skill or ability that has not yet developed or is impaired;
  (B) Compensation, modification, or adaptation of activity or environment to enhance performance;
  (C) Maintenance and enhancement of capabilities without which performance in everyday life activities would decline;
  (D) Health promotion and wellness to enable or enhance performance in everyday life activities; and
  (E) Prevention of barriers to performance, including disability prevention.
  (2) Evaluation of factors affecting activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:
  (A) Client factors, including body functions and body structures;
  (B) Habits, routines, roles and behavior patterns;
  (C) Cultural, physical, environmental, social and spiritual contexts and activity that affect performance; and
  (D) Performance skills, including motor, process and communication/interaction skills.
  (3) Interventions and procedures to promote or enhance safety and performance in activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:
  (A) Therapeutic use of occupations and preparatory, adjunctive and functional activities;
  (B) Training in self-care, self-management home management and community/work reintegration;
  (C) Development, remediation, or compensation of physical, cognitive, neuromuscular, sensory functions, visual, vestibular and behavioral skills;
  (D) Therapeutic use of self, including one's personality, insights, perceptions and judgments, as part of the therapeutic process;
  (E) Education and training of individuals, including family members, care givers and others;
  (F) Care coordination, case management and transition services;
  (G) Consultative services to groups, programs, organizations or communities;
  (H) Modification of environments (home, work, school or community) and adaptation of processes, including the application of ergonomic principles;
  (I) Assessment, design, fabrication, application, fitting and training in assistive technology, adaptive devices, orthotic devices and training in the use of prosthetic devices to enhance occupational performance;
  (J) Assessment, recommendation and training in techniques to enhance functional mobility, including wheelchair management;
  (K) Community mobility and re-entry;
  (L) Management of feeding, eating and swallowing to enable eating and feeding performance; and
  (M) Application of physical agent modalities, and use of a range of specific therapeutic procedures and techniques to enhance occupational performance skills. Use of physical agent modalities by occupational therapy assistants must be consistent with their education (e.g. superficial thermal and mechanical modalities) and used under the general supervision of an occupational therapist. The use of deep thermal or electrical modalities may only be performed by the occupational therapy assistant under the direct supervision of an occupational therapist, until the board shall promulgate rules as well as establish competency standards for the use of the modalities.
  (b) No person may engage in the practice of occupational therapy or present herself or himself as an occupational therapist or occupational therapy assistant in this state, or use the words 'occupational therapist', 'licensed occupational therapist', 'occupational therapist registered', 'occupational therapy assistant', 'licensed occupational therapy assistant', 'certified occupational therapy assistant' or 'occupational therapy aide' or the letters 'O.T.', 'L.O.T.', 'O.T.R.', 'O.T.A.', 'L.O.T.A.', 'C.O.T.A.' or any other words, letters, abbreviations or insignia indicating or implying that he or she is an occupational therapist or occupational therapy assistant, unless he or she holds a valid, current license issued in accordance with the provisions of this article, which has not expired, been suspended or revoked.
  (c) No business entity may advertise or otherwise offer to provide or convey the impression that it is providing occupational therapy unless an individual holding a current valid license or permit under this article renders the occupational therapy services to which reference is made.
  (d) An occupational therapy assistant may assist in the practice of occupational therapy under the general supervision of an occupational therapist.
  (e) An occupational therapist or an occupational therapy assistant may delegate nonclient-related tasks to an occupational therapy aide only under the following conditions:
  (1) The occupational therapy aide functions under the general supervision of either the occupational therapist or the occupational therapy assistant who is under the general supervision of the occupational therapist; and
  (2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence.
  (f) An occupation therapist or an occupational therapy assistant may delegate specifically selected client-related tasks to an occupational therapy aide only under the following conditions:
  (1) The occupational therapy aide functions under the direct continuous supervision of either the occupational therapist or the occupational therapy assistant that is under the general supervision of the occupational therapist;
  (2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence;
  (3) The outcome anticipated for the delegated task is predictable;
  (4) The client and the environment are stable and will not require judgment, interpretation or adaptation by the occupational therapy aide; and
  (5) The supervising occupational therapist is responsible for the tasks delegated to the occupational therapy aide.
§30-28-5. West Virginia Board of Occupational Therapy.
  (a) The West Virginia Board of Occupational Therapy is continued with the following five members appointed by the governor by and with the advice and consent of the Senate:
  (1) Three licensed occupational therapists;
  (2) One licensed occupational therapy assistant; and
  (3) One citizen member, who is not licensed under the provisions of this article.
  (b) The occupational therapist and occupational therapy assistant members shall have been engaged in rendering occupational therapy services to the public, teaching, consulting or conducting research in occupational therapy for at least three years immediately preceding their appointments.
  (c) No board member may serve as an officer of the West Virginia Occupational Therapy Association concurrently with his or her service on the board.
  (d) The members of the board in office on December 31, 2008, shall, unless sooner removed, continue to serve until their respective terms expire or their successors have been appointed and qualified.
  (e) The term shall be for three years commencing on January 1. A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.
  (f) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years immediately preceding the appointment.
  (g) Each member of the board must be a resident of this state during the appointment term.
  (h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
  (i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
  (j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
  (k) The board shall elect annually one of its members as chairperson who serves at the will of the board.
  (l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
  (m) A majority of the members of the board constitutes a quorum.
  (n) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
  (o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-28-6. Powers and duties of the board.
  (a) The board has all the powers and duties set forth in this article, by legislative rule, in article one of this chapter and elsewhere in law.
  (b) The board shall:
  (1) Hold meetings and conduct hearings;
  (2) Establish requirements for licenses and permits;
  (3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;
  (4) Determine the qualifications of any applicant for a license or permit;
  (5) Propose rules for legislative approval relating to professional conduct and ethical standards of practice;
  (6) Communicate disciplinary actions to relevant state and federal authorities, the National Board for Certification in Occupational Therapy (NBCOT), the American Occupational Therapy Association (AOTA) and other applicable authorities when public safety is at risk;
  (7) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce the provisions of this article including, but not limited to, the executive secretary;
  (8) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
  (9) Conduct disciplinary hearings of persons regulated by the board;
  (10) Determine disciplinary action and issue orders;
  (11) Institute appropriate legal action for the enforcement of the provisions of this article;
  (12) Maintain an accurate registry of names and addresses of all persons regulated by the board;
  (13) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
  (14) Establish by legislative rule the continuing education and competency requirements for licensees;
  (15) Issue, renew, combine, deny, suspend, revoke or reinstate licenses and permits;
  (16) Establish a fee schedule;
  (17) Take all other actions necessary and proper to effectuate the purposes of this article; and
  (18) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
  (c) The board may:
  (1) Approve and contract with third parties to administer the examinations required under the provisions of this article;
  (2) Sue and be sued in its official name as an agency of this state; and
  (3) Confer with the Attorney General or his or her assistants in connection with legal matters and questions.
§30-28-7. Rulemaking.
  (a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
  (1) Standards and requirements for licenses and permits;
  (2) Designate third parties to establish educational requirements and to prepare and/or administer examinations and reexaminations;
  (3) Procedures for the issuance and renewal of a license, temporary license and limited permit;
  (4) A fee schedule;
  (5) Continuing education and competency requirements for licensees;
  (6) Establishment of competency standards;
  (7) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee or permittee;
  (8) Requirements for reinstatement of revoked licenses; and
  (9) Any other rules necessary to effectuate the provisions of this article.
  (b) The board is authorized to promulgate emergency rules in accordance with section fifteen, article three, chapter twenty-nine-a of this code to establish competency standards for advance treatment techniques as set forth in subdivision six, subsection (a) of this section.
  (c) All rules in effect on the effective date of this article shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.
§30-28-8. Fees; special revenue account; administrative fines.
  (a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the 'West Virginia Board of Occupational Therapy', which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
  (b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.
§30-28-9. Persons and practices not affected.
  This article does not prevent or restrict the practice, services or activities of:
  (1) Any person licensed under any other law of this state performing services within the authorized scope of practice for which he or she is licensed;
  (2) Any person pursuing a course of study leading to a degree in Occupational Therapy from an accredited educational program if the person acts under the supervision of a clinical supervisor or instructor of the accredited education program and is designated by a title which clearly indicates his or her status as a student; or
  (3) Any person fulfilling the supervised fieldwork experience requirements of section ten of this article.
§30-28-10. Qualifications of applicants for license.
  To be eligible for a license to engage in the practice of occupational therapy, the applicant must:
  (1) Be of good moral character;
  (2) Have successfully completed the academic requirements of an educational program for Occupational Therapists or Occupational Therapy Assistants that is accredited by the American Occupational Therapy Association's Accreditation Council for Occupational Therapy Education (ACOTE) or its predecessor organizations;
  (3) Have successfully completed a period of supervised fieldwork experience required by the recognized educational institution where he or she met the academic requirements;
  (4) Have passed an examination approved by the board;
  (5) Have filed an application on forms provided by the board; and
  (6) Have paid the applicable fee.
§30-28-11. Examination.
  (a) A person who has met the requirements of subsections (1), (2) and (3), section ten of this article, may make application for examination.
  (b) Each applicant for licensure shall be examined by written or computerized examination to test his or her knowledge of the basic and clinical sciences relating to occupational therapy, and occupational therapy theory and practice, including the professional skills and judgment of the applicant in the utilization of occupational therapy techniques and methods, and other subjects the board may require to determine the fitness for practice of the applicant. The examination may be administered by the National Board for Certification in Occupational Therapy, Inc. (NBCOT) or another nationally recognized credentialing body as approved by the board.
§30-28-12. Licensees from other jurisdictions; internationally educated applicants.
 (a) The board may issue a license to practice to any applicant who presents proof of current licensure as an occupational therapist or an occupational therapy assistant in another jurisdiction which requires standards for licensure considered by the board or by a board-approved credentialing agency to be equivalent to the requirements for licensure in this state and who meets the requirements of section ten of this article.
  (b) The board may grant a license to an applicant who was educated outside of the United States or its territories in an educational program whose standards are determined by the board or by a board-approved credentialing agency to be equivalent to the standards required for licensure in this state and who meets the requirements of section ten of this article.
  (c) In its discretion, the board may examine a person by a written, oral or skills test for licensing under this section, and may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.
§30-28-13. Issuance of a license, limited permit and temporary license.
  (a) The board shall issue a license to any person who meets the requirements of this article upon payment of the license fee prescribed.
  (b) The board may issue a limited permit to persons who have completed the education and fieldwork experience requirements of this article. The holder of a limited permit may practice occupational therapy only under the direct close supervision of an occupational therapist who holds a current license in this state. A limited permit is not renewable, and is valid for ninety days: Provided, That the limited permit expires immediately if the holder receives notification of a failing score on the examination.
  (c) The board may issue a temporary license to an occupational therapist or an occupational therapy assistant who is licensed and in good standing in a jurisdiction whose standards are determined by the board or by a board-approved credentialing agency to be equivalent to the standards required for licensure in this state and who has submitted an application and the required fee. The holder of a temporary license may practice occupational therapy only in accordance with the provisions of this article. A temporary license is nonrenewable and is valid for thirty days.
  (d) The board shall prescribe the form of licenses. The licensee shall conspicuously display the license or a copy of the license at his or her principal place of employment. The licensee shall produce the original license upon the request of the board.
§30-28-14. Renewal of license; renewal of lapsed license; suspension, revocation and refusal to renew; reinstatement of revoked license.

  (a) Licenses may be renewed biennially upon documentation of required continuing education and payment of a renewal fee.
  (b) A license which has lapsed may be renewed within one year of its expiration date in the manner set by the board. After the expiration of one year, a license may be renewed only by complying with the requirements relating to the issuance of an original license.
  (c) The board may suspend, revoke or refuse to renew a license for any reason which would justify the denial of an original application for licensure.
  (d) The board may consider the reinstatement of a license which has been revoked upon a showing that the applicant can resume practicing with reasonable skill and safety.
§30-28-15. Special volunteer occupational therapist license; civil immunity for voluntary services rendered to indigents.

  (a) There is established a special volunteer occupational therapist license for occupational therapists who are retired or are retiring from the active practice of occupational therapy and who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.
  (b) The special volunteer occupational therapist license shall be issued by the board to occupational therapists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements.
  (c) The board shall develop application forms for the special license provided in this section which shall contain the occupational therapist's acknowledgment that:
  (1) The occupational therapist's practice under the special volunteer occupational therapist license will be exclusively devoted to providing occupational therapy care to needy and indigent persons in West Virginia;
  (2) The occupational therapist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any occupational therapy services rendered under the special volunteer occupational therapist license;
  (3) The occupational therapist will supply any supporting documentation that the board may reasonably require; and,
  (4) The occupational therapist agrees to continue to participate in continuing education as required by the board for a special volunteer occupational therapists license.
  (d) Any occupational therapist who renders any occupational therapy service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer occupational therapist license authorized under this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the occupational therapy service at the clinic unless the act or omission was the result of the occupational therapist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, before the rendering of any services by the occupational therapist at the clinic, there must be a written agreement between the occupational therapist and the clinic stating that the occupational therapist will provide voluntary uncompensated occupational therapy services under the control of the clinic to patients of the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
  (e) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an occupational therapist rendering voluntary occupational therapy services at or for the clinic under a special volunteer occupational therapist license authorized under this section.
  (f) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure in this article except the fee requirements.
  (g) Nothing in this section may be construed as requiring the board to issue a special volunteer occupational therapist license to any occupational therapist whose occupational therapist license is or has been subject to any disciplinary action or to any occupational therapist who has surrendered an occupational therapist license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has elected to place an occupational therapist license in inactive status in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has been denied an occupational therapist license.
  (h) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any occupational therapist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an occupational therapist who holds a special volunteer occupational therapist license.
§30-28-16. Complaints; investigations; due process procedure; grounds for disciplinary action.

  (a) The board may upon its own motion based on credible information, and shall, upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
  (b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.
  (c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated any provision of subsection (g) of this section or rules promulgated pursuant to this article.
  (d) Upon a finding that probable cause exists that the licensee or permittee has violated any provision of this subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.
  (e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
  (f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
  (g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license of, impose probationary conditions upon or take disciplinary action against, any licensee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
  (1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;
  (2) Being convicted of a felony or other crime involving moral turpitude;
  (3) Being guilty of unprofessional conduct as defined by legislative rule of the board;
  (4) A violation of a lawful order or legislative rule of the board;
  (5) Providing substandard care as an Occupation Therapist due to a deliberate or negligent act or failure to act regardless of whether actual injury to a patient is established;
  (6) Providing substandard care as an Occupational Therapy Assistant, including exceeding the authority to perform components of intervention selected and delegated by the supervising Occupational Therapist regardless of whether actual injury to a patient is established;
  (7) Knowingly delegating responsibilities to an individual who does not have the knowledge, skills or abilities to perform those responsibilities;
  (8) Failing to provide appropriate supervision to an Occupational Therapy Assistant or Aide in accordance with this article and legislative rules of the board;
  (9) Practicing as an Occupational Therapist or Occupational Therapy Assistant when competent services to recipients may not be provided due to the therapist's own physical or mental impairment;
  (10) Having had an Occupational Therapist or Occupational Therapy Assistant license revoked or suspended, other disciplinary action taken, or an application for licensure refused, revoked or suspended by the proper authorities of another jurisdiction;
  (11) Engaging in sexual misconduct. For the purposes of this subdivision, sexual misconduct includes:
  (A) Engaging in or soliciting sexual relationships, whether consensual or nonconsensual, while an Occupational Therapist or Occupational Therapy Assistant/patient relationship exists with that person; or
  (B) Making sexual advances, requesting sexual favors or engaging in physical contact of a sexual nature with patients or clients;
  (12) Aiding or abetting a person who is not licensed as an Occupational Therapist or Occupational Therapy Assistant in this state and who directly or indirectly performs activities requiring a license;
  (13) Abandoning or neglecting a patient or client under and in need of immediate professional care without making reasonable arrangements for the continuation of care; or
  (14) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.
  (h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:
  (1) Reprimand;
  (2) Probation;
  (3) Administrative fine, not to exceed $1,000 per day per violation;
  (4) Mandatory attendance at continuing education seminars or other training;
  (5) Practicing under supervision or other restriction;
  (6) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time; or
  (7) Other disciplinary action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-28-17. Procedures for hearing; right of appeal.
  (a) Hearings shall be governed by the provisions of section eight, article one of this chapter.
  (b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
  (c) If the hearing is conducted by an administrative law judge, the administrative law judge shall prepare a proposed written order at the conclusion of a hearing containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
  (d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
  (e) If, after a hearing, the board determines the licensee or permittee has violated any provision of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-28-18. Judicial review.
  Any licensee or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-28-19. Criminal proceedings; penalties.
  (a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee or permittee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.
  (b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-28-20. Single act evidence of practice.
  In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.
§30-28-21. Effective dates of certain provisions.
  The provisions of this article as amended and reenacted during the regular session of 2009, except for the provisions of sections seven, sixteen and nineteen, are effective as of July 1, 2009."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2309 - "A Bill to amend and reenact §30-28-1, §30-28-2, §30-28-3, §30-28-4, §30-28-5, §30-28-6, §30-28-7, §30-28-8, §30-28-9, §30-28-10, §30-28-11, §30-28-12, §30-28-13, §30-28-14, §30-28-15, §30-28-16, §30-28-17 and §30-28-18 of the Code of West Virginia, 1931, as amended; and to amend said article by adding thereto three new sections, designated §30-28-19, §30-28-20 and §30-28-21, all relating to the practice of occupational therapy; providing definitions; setting forth the scope of practice of occupational therapy; prohibiting practice or use of titles unless licensed; removing the requirement for referral by a physician or other health care practitioner; setting forth supervision requirements for assistants and aides; clarifying qualifications to serve as a board member; setting forth powers and duties of the board; providing exemptions from licensure; clarifying qualifications for licensure; setting forth examination requirements; providing for licensure for applicants from other jurisdictions; clarifying conditions of limited permits and temporary licenses; providing for renewal, suspension and revocation of licenses; providing for refusal to renew licenses; providing for reinstatement of lapsed licenses; setting forth complaint procedures; establishing grounds for disciplinary actions; providing for hearing procedures and rights of appeal; providing rulemaking authority; providing for criminal investigations, proceedings and penalties; establishing that a single act may constitute evidence of practice; establishing special, retired, volunteer and inactive licenses; providing civil immunity for healthcare professionals donating their expertise for the care and treatment of indigent and needy patients in a clinic setting; and providing effective dates for certain provisions."
  On motion of Delegate Boggs, 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. 440), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
  Nays: McGeehan.
  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. 2309) passed.
  Delegate Boggs moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 441), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
  Nays: McGeehan.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2309) takes effect from its passage.
  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 passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2528, Updating the regulation of the practice of forestry.
  On motion of Delegate Boggs, 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 §30-19-1, §30-19-2, §30-19-3, §30-19-4, §30-19-5, §30-19-6, §30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto six new sections, designated §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16, and §30-19-17, all to read as follows:
ARTICLE 19. FORESTERS.
§30-19-1. Use of descriptive title restricted.

  (a) No person may use in connection with his or her name or otherwise assume, use or advertise any title or description tending to convey the impression that he or she is a registered forester or registered forestry technician unless he or she is certified in accordance with this article.
  (b) Nothing contained in this article shall be construed as preventing any person, firm, partnership or corporation from practicing forestry, managing woodlands or forests, removing any products or planting trees on any land, in any manner desired.
§30-19-2. Applicable law.
  The practice of forestry and the State Board of Registration of Foresters are subject to article one of this chapter, this article, and any rules promulgated hereunder.
§30-19-3. Definitions.

  As used in this article, the following words and terms have the following meanings:
  (a) 'Board' means the State Board of Registration of Foresters.
  (b) 'Certificate' means a certificate issued to practice as a registered forester or registered forestry technician.
  (c) 'Certification' means a certificate issued under the provisions of this article.
  (d) 'Certified' means a person holding a certification issued under the provisions of this article.
  (e) 'Forester' means a person who has acquired specialized forestry training by reason of his or her knowledge of the natural sciences, mathematics, silviculture, forest protection, forest management, forest economics and forest utilization, acquired by professional forestry education and practical experience.
  (f) 'Forester-in-training' or 'Forestry technician-in-training' means a person who possesses the necessary educational qualifications as prescribed in this article for certification, but who has not completed the experience requirements in the field of forestry as required for certification.
  (g) 'Forestry' means the professional practice embracing the science, business, and the art of creating, conserving and managing forests and forestlands for the sustained use and enjoyment of their resources, material or other forest produce.
  (h) 'Practice of forestry' means professional forestry services, including the consultation, investigation, evaluation, planning or responsible supervision of any forestry activities when such professional service requires the application of forestry principles and techniques.
  (i) 'Permit' means a document issued as evidence of qualification to practice as a forester-in- training or forestry technician-in-training under this article.
  (j) 'Permitee' means a person holding a permit issued under the provisions of this article.
  (k) 'Registered Forester' means a forester certified under this article.
  (l) 'Registered Forestry Technician' means a forestry technician certified under this article.
§30-19-4. State Board of Registration of Foresters.
  (a) The State Board of Registration of Foresters is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
  (b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advise and consent of the Senate, a registered forestry technician to replace the board member whose term ends on June 30, 2009.
  (c) Commencing July 1, 2009, the board shall consist of the following five members:
  (1) Four registered foresters; and
  (2) One registered forestry technician.
  (d) Each member shall be appointed by the Governor, by and with the consent of the Senate, from five nominees recommended by the West Virginia Division of the Society of American Foresters. The term is for five years.
  (e) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.
  (f) Each member of the board shall be a resident of West Virginia during the appointment term.
  (g) Each member must have been certified in this state for a period of not less than three years prior to his or her appointment and must have engaged in the practice of forestry for at least ten years.
  (h) Each member shall maintain an active certification with the board.
  (i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
  (j) A member of the board immediately and automatically forfeits membership to the board if his or her certification has been suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
  (k) The board shall elect annually one of its members as chairperson and one member as secretary who shall serve at the will and pleasure of the board.
  (l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
  (m) A majority of the members serving on the board constitutes a quorum.
  (n) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.
  (o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-19-5. Powers and duties of the board.
  (a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
  (b) The board shall:
  (1) Hold meetings, conduct hearings and administer examinations;
  (2) Establish requirements for a certification or permit;
  (3) Establish procedures for submitting, approving and rejecting applications for a certification or permit;
  (4) Determine the qualifications of any applicant for a certification or permit;
  (5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a certificate;
  (6) Determine the passing grade for the examinations;
  (7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;
  (8) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce this article;
  (9) Investigate alleged violations of this article, legislative rules, orders and final decisions of the board;
  (10) Conduct disciplinary hearings of persons regulated by the board;
  (11) Determine disciplinary action and issue orders;
  (12) Institute appropriate legal action for the enforcement of this article;
  (13) Maintain an accurate registry of names and addresses of all persons regulated by the board;
  (14) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
  (15) Establish, by legislative rule, the continuing education requirements for certificate holders and permittees; and
  (16) Propose rules in accordance with article three, chapter twenty-nine-a of this code to implement this article.
  (c) The board may:
  (1) Contract with third parties to administer the examinations required under this article;
  (2) Define, by legislative rule, the fees charged under this article;
  (3) Issue, renew, deny, suspend, revoke or reinstate a certification or permit;
  (4) Sue and be sued in its official name as an agency of this state;
  (5) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and
  (6) Take all other actions proper to effectuate the purposes of this article.
§30-19-6. Rulemaking.
  (a) The board shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, to implement this article, including:
  (1) Standards and requirements for a certification and permit;
  (2) Procedures for examinations and reexaminations;
  (3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
  (4) Educational and experience requirements, and the passing grade on the examination;
  (5) Standards for ethical conduct;
  (6) Procedures for the issuance and renewal of a certification and permit;
  (7) A fee schedule;
  (8) Continuing education requirements for a certificate holder and permittee;
  (9) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a certificate holder or permittee;
  (10) Requirements for inactive or revoked certificate and permit; and
  (11) Any other rules necessary to effectuate the provisions of this article.
  (b) All of the board's rules in effect on the effective date of this article shall remain in effect until amended or repealed, and references to former enactments of this act are interpreted to mean this article.
§30-19-7. Fees; special revenue account; administrative fines.
  (a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the 'Board of Foresters Fund', which fund is continued. The fund shall be used by the board for the administration of this article. Except as provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.
  (b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.
§30-19-8. General requirements to be certified as a registered forester.
  (a) To be eligible to be certified as a registered forester, the applicant must:
  (1) Be of good moral character;
  (2) Have a high school diploma or its equivalent;
  (3) Have obtained either:
  (A) Completion of a four-year degree program or masters degree program in professional forestry, accredited by the Society of American Foresters and have two years related experience in the field of forestry; or
  (B) Completion of a two-year technical forestry program in a program accredited or recognized by the Society of American Foresters, completion of a bachelor's degree in a field used in the practice of forestry as approved by the board and four years related experience in the field of forestry;
  (4) Successfully pass an examination approved by the board.
  (b) Those persons licensed by the board as a forester as of the effective date of this section are not required to take the examination.
§30-19-9. General requirements to be registered forestry technician.
  To be eligible to be certified as a registered forestry technician, the applicant must:
  (1) Be of good moral character;
  (2) Have a high school diploma or its equivalent;
  (3) Graduate from a two-year technical forestry program accredited or recognized by the Society of American Foresters;
  (4) Complete four years of related experience in the field of forestry.
§30-19-10. Qualifications for permit as a forester-in-training or a forestry technician-in- training.

  
(a) The board may issue a permit to practice as a forester- in-training or a forestry technician- in-training to an applicant who meets all the requirements for certification, except the experience requirements of paragraph (A) or (B), subdivision three, subsection (a), section eight or subdivision four, section nine.
  (b) A permit to practice as a forester-in-training or forestry technician-in-training may be renewed annually for a period not to exceed five years. The board may extend the five year limitation if the board finds the applicant experienced an undue hardship which prevented the attainment of the required experience.
§30-19-11. License from another state.
  The board may issue a certification to a person as a registered forester in this state, without requiring an examination, to an applicant from another jurisdiction who:
  (1) Is not a resident of this state;
  (2) Is of good moral character;
  (3) Holds a valid forestry license or other authorization to practice forestry in another jurisdiction which meets requirements that are substantially equivalent to the certification requirements set forth in this article;
  (4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her authorization, and has never had his or her authorization revoked;
  (5) Has not previously failed an examination for certification in this state;
  (6) Has paid all the applicable fees; and
  (7) Has completed such other action as required by the board.
§30-19-12. Renewal requirements.
  (a) All persons regulated under the provisions of this article shall annually before January 1, renew his or her certification or permit by completing a form prescribed by the board and submit any other information required by the board.
  (b) At least thirty days prior to July 1 of each year, the board shall mail to every person regulated under the provisions of this article an application for renewal.
  (c) The board shall charge a fee for each renewal of a certification or permit and may charge a late fee for any renewal not paid in a timely manner.
  (d) The board shall require as a condition for the renewal of a certification or permit that each person regulated under the provisions of this article complete continuing education.
  (e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a certification or permit.
§30-19-13. Complaints; investigations; due process procedure; grounds for disciplinary action.

  (a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.
  (b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the certificate holder or permittee.
  (c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.
  (d) Upon a finding that probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the certification or permit or the imposition of sanctions against the certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article.
  (e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
  (f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
  (g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the certification or permit of, impose probationary conditions upon or take disciplinary action against, any certificate holder or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:
  (1) Obtaining a certification or permit by fraud, misrepresentation or concealment of material facts;
  (2) Being convicted of a felony or other crime involving moral turpitude;
  (3) Being guilty of unprofessional conduct as defined by legislative rule of the board;
  (4) Violating this article or lawful order or rule of the board;
  (5) Having had a certificate or permit revoked or suspended, other disciplinary action taken, or an application for certification or permit or other authorization refused, revoked or suspended by the proper authorities of another jurisdiction; or
  (6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.
  (h) For the purposes of subsection (g) of this section, disciplinary action may include:
  (1) Reprimand;
  (2) Probation;
  (3) Administrative fine, not to exceed $1,000 per day per violation;
  (4) Mandatory attendance at continuing education seminars or other training;
  (5) Practicing under supervision or other restriction;
  (6) Requiring the certificate holder or permitee to report to the board for periodic interviews for a specified period of time; or
  (7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.
§30-19-14. Procedures for hearing; right of appeal.
  (a) Hearings shall be governed by section eight, article one of this chapter.
  (b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
  (c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.
  (d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.
  (e) If, after a hearing, the board determines the certificate holder or permittee has violated this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.
§30-19-15. Judicial review; appeal to Supreme Court of Appeals.
  Any certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.
§30-19-16. Criminal proceedings; penalties.
  (a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a certificate holder or permitee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.
  (b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.
§30-19-17. Single act evidence of practice.
  In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct."
  And by amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2528 - "A Bill to amend and reenact §30-19-1, §30-19-2,§30-19-3, §30-19-4, §30-19-5, §30-19-6, §30-19-7, §30-19-8, §30-19-9, §30-19-10 and §30-19-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto six new sections, designated §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16, and §30-19-17, all relating to State Board of Registration of Foresters; prohibiting the use of the titles registered forester and registered forestry technician; providing other applicable sections; providing definitions; providing for board composition; setting forth the powers and duties of the board; clarifying rule making authority; continuing a special revenue account; establishing certificate and permit requirements; providing for licensure for persons licensed in another state; establishing renewal requirements; requiring display of license; setting forth grounds for disciplinary actions; allowing for specific disciplinary actions; providing procedures for investigation of complaints; providing for judicial review and appeals of decisions; setting forth hearing and notice requirements; providing for civil causes of action; providing criminal penalties; and providing that a single act is evidence of practice."
  On motion of Delegate Boggs, 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. 442), and there were--yeas 98, nays 2, absent and not voting none, with the nays being as follows:
  Nays: McGeehan and J. Miller.
  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. 2528) passed.
  Delegate Boggs moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 443), and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
  Nays: Ireland, McGeehan, C. Miller and Sobonya.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2528) takes effect from its passage.
  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 passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2788, Protecting incapacitated adults from abuse or neglect by a care giver.
  On motion of Delegate Boggs, 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 §61-2-29 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 §61-2-29a and §61-2- 29b, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties.        
  (a) The following words, when used in this section and sections twenty-nine-a and twenty- nine-b of this article, have the meaning ascribed, unless the context clearly indicates otherwise:
  (1) 'Abuse' means the intentional infliction of bodily injury on an incapacitated adult;
  (2) 'Bodily injury' means substantial physical pain, illness or any impairment of physical condition;
  (3)'Caregiver' means any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or has voluntarily assumed responsibility for the care of an incapacitated adult. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult.    
  (4)'Incapacitated adult' means any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health;
  (5)'Neglect' means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; and
  (6) 'Serious bodily injury' means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
  (b) A caregiver who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.
  (c) A caregiver who abuses an incapacitated adult or who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
  (d) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.
  (e) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than three years nor more than fifteen years.
  (f) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.
  (g) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to article thirty, chapter sixteen of this code.
§61-2-29a. Death of an incapacitated adult by a caregiver.
  (a) A caregiver who intentionally and maliciously neglects an incapacitated adult causing death is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years.
  (b) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally or maliciously neglect the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years.
  (c) A caregiver of an incapacitated adult who intentionally and maliciously abuses an incapacitated adult which causes the death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years.
  (d) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally and maliciously abuse an incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years.
  (f) The provisions of this section do not apply to any caregiver or health care provider who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply an incapacitated adult with necessary medical care when the medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the incapacitated adult is an adherent member.
§61-2-29b. Unlawful expenditure or dissipation of funds of an incapacitated adult by as caregiver.         

     (a) A caregiver of an incapacitated adult who intentionally misappropriates or misuses the funds or assets of an incapacitated adult in the amount of less than $1,000 in value for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail no more than one year, or both fined and confined.
     (b) A caregiver of an incapacitated adult who intentionally misappropriates or misuses the funds or assets of an incapacitated adult in the amount of $1,000 or more in value for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and imprisoned in a state correctional facility not less than one nor more than ten years.
     (c) A caregiver of an incapacitated adult, who by means of intentional intimidation, infliction of bodily injury or threats of the infliction of bodily injury to an incapacitated adult, willfully misappropriates or misuses for the caregiver's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and imprisoned in a state correctional facility not less than three nor more than fifteen years."
     And by amending the title of the bill to read as follows:
     Com. Sub. for H. B. 2788 - "A Bill to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §61-2-29a and §61-2-29b, all relating to protecting incapacitated adults; providing criminal penalties for the offenses of abuse or neglect of incapacitated adults; providing definitions; establishing and revising criminal penalties for the unlawful misappropriation or misuse of funds or assets of an incapacitated adult by a caregiver; and providing exceptions."
     On motion of Delegate Boggs, 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. 444), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
     Nays: McGeehan.
     Absent And Not Voting: Ellem and Fleischauer.
     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. 2788) passed.
     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 passed, with amendment, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 2531, Updating the regulation of the practice of barbers and cosmetologists.
     On motion of Delegate Boggs, 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 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-1. Unlawful acts.
     
(a) It is unlawful for any person to practice or offer to practice barbering, barber permanent waving, cosmetology, aesthetics, or nail care in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician, unless the person has been licensed under the provisions of this article, and the license has not expired, been suspended or revoked.
     (b) No salon, except through a licensee, may render any service or engage in any activity which if rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.
     (c) No school, except through a licensee, may instruct, render any service or engage in any activity which if taught, rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.
§30-27-2. Applicable law.
     The practices licensed under the provisions of this article and the Board of Barbers and Cosmetologists are subject to the provisions of article one of this chapter, the provisions of this article, and any rules promulgated hereunder.
§30-27-3. Definitions.
     As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
     (a) 'Aesthetics' or 'esthetics' means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
     (1) Administering cosmetic treatments to enhance or improve the appearance of the skin, including cleansing, toning, performing effleurage or other related movements, stimulating, exfoliating or performing any other similar procedure on the skin of the human body or scalp;
     (2) Applying, by hand or with a mechanical or electrical apparatus, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person's face, neck, back, shoulders, hands, elbows and feet up to and including the knee;
     (3) The rubbing, cleansing, exercising, beautifying or grooming of another person's face, neck, back, shoulders, hands, elbows and feet up to and including the knee;
     (4) The waxing, tweezing and threading of hair on another person's body;
     (5) The wrapping of another person's body in a body wrap;
     (6) Applying artificial eyelashes and eyebrows; and
     (7) The lightening of hair on the body except the scalp.
     (b) 'Aesthetician' or 'esthetician' means a person licensed under the provisions of this article who engages in the practice of aesthetics.
     (c) 'Applicant' means a person making application for a professional license, license, certificate, registration, permit or renewal under the provisions of this article.
     (d) 'Barber' means a person licensed under the provisions of this article who engages in the practice of barbering.
     (e) 'Barbering' means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
     (1) Shaving, shaping and/or trimming the beard;
     (2) Cutting, singeing, shampooing, arranging, dressing, tinting, bleaching, or applying lotions or tonics on human hair, or a wig or hairpiece; and
     (3) Applications, treatments or rubs of the scalp, face, or neck with oils, creams, lotions, cosmetics, antiseptics, powders, or other preparations in connection with the shaving, cutting or trimming of the hair or beard.
     (f) 'Barber crossover' or 'cosmetologist crossover' is a person who is licensed to perform barbering and cosmetology.
     (g) 'Barber permanent waving' means the following acts done on the human body for compensation and not for the treatment of disease:
(1) The bleaching or tinting of hair; and

(2) The permanent waving of hair.

     (h) 'Barber permanent wavist' means a person licensed to perform barbering and barber permanent waving.
     (i) 'Board' means the West Virginia Board of Barbers and Cosmetologists.
     (j) 'Certificate' means an instructor certificate to teach in a school under the provisions of this article.
     (k) 'Certificate holder' means a person certified as an instructor to teach in a school under the provisions of this article.
     (l) 'Cosmetologist' means a person licensed under the provisions of this article who engages in the practice of cosmetology.
     (m) 'Cosmetology' means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
     (1) Cutting, styling, shaping, arranging, braiding, weaving, dressing, adding extensions, curling, waving, permanent waving, relaxing, straightening, shampooing, cleansing, singeing, bleaching, tinting, coloring, waxing, tweezing, or similarly work on human hair, or a wig or hairpiece, by any means, including hands, mechanical or electrical devices or appliances;
(2) Nail care;

     (3) Applying by hand or with a mechanical or electrical device or appliance, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person's face, neck, shoulders, hands, elbows and feet up to and including the knee;
     (4) The rubbing, cleansing, exercising, beautifying or grooming of another person's face, neck, shoulders, hands, elbows and feet up to and including the knee;
(5) The wrapping of another person's body in a body wrap; and

     (6) Performing aesthetics.
     (n) 'General supervision' means:
     (1) For schools, a master or certified instructor is on the premises and is quickly and easily available; or
     (2) For salons, a professional licensee is on the premises and is quickly and easily available.
     (o) 'Hair braiding' means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease: Braiding, plaiting, twisting, wrapping, threading, weaving, extending or locking of natural human hair by hand or mechanical device.
     (p) 'License' means a professional license, a salon license or a school license.
     (q) 'Licensee' means a person, corporation or firm holding a license issued under the provisions of this article.
     (r) 'Nail care' means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:
     (1) The cleansing, dressing, or polishing of nails of a person (2) Performing artificial nail service; and

     (3) The cosmetic treatment of the feet up to the knee and the hands up to the elbow.
     (s) 'Nail technician' or 'manicurist' means a person licensed under the provisions of this article who engages in the practice of nail care.
     (t) 'Permit' means a work permit.
     (u) 'Permitee' means a person holding a work permit.
     (v) 'Professional license' means a license to practice as a aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover or nail technician.
     (w) 'Registration' means a registration issued by the board to a person who rents or leases a booth or chair from a licensed salon owner and/or operator or a registration issued by the board to a person who is a student in a school.
     (x) 'Registrant' means a person who holds a registration under the provisions of this article.
     (y) 'Salon' means a shop or other facility where a person practices under a professional license.
     (z) 'Salon license' means a license to own and operate a salon.
     (aa) 'School' means a facility to educate persons to be licensed with professional licenses under the provisions of this article.
     (bb) 'School license' means a license to own and operate a school.
     (cc) 'Student registration' means a registration issued by the board to a student to study at a school licensed under the provisions of this article.
§30-27-4. Board of Barbers and Cosmetologists.
     (a) The West Virginia Board of Barbers and Cosmetologists is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.
     (b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advice and consent of the Senate:
     (1) One person who is a licensed cosmetologist for a term of five years;
     (2) One person who is a licensed barber for a term of five years;
     (3) One person who is a licensed barber crossover or a licensed barber permanent wavist for a term of four years;
     (4) One person who is a licensed aesthetician for a term of four years;
     (5) One person who is a licensed nail technician for a term of four years;
     (6) One person who is a licensed cosmetologist for a term of three years; and
     (7) One citizen member, who is not licensed under the provisions of this article and who does not perform any services related to the practice of the professions regulated under the provisions of this article, for a term of three years.
     (c) After the initial appointment term, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.
     (d) Commencing July 1, 2009, the board shall consist of the following seven members:
     (1) Two licensed cosmetologists;
     (2) One licensed barber;
     (3) One licensed barber crossover or licensed barber permanent wavist;
     (4) One licensed aesthetician;
     (5) One licensed nail technician; and
     (6) One citizen member.
     (e) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.
     (f) Each member of the board must be a resident of this state during the appointment term.
     (g) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified. A member serving on the board on June 30, 2009, may be reappointed in accordance with the provisions of this section.
     (h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
     (i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
     (j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.
     (k) The board shall elect annually one of its members as chairperson who serves at the will of the board.
     (l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
     (m) A majority of the members of the board constitutes a quorum.
     (n) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
     (o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
§30-27-5. Powers and duties of the board.
     (a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.
     (b) The board shall:
     (1) Hold meetings, conduct hearings and administer examinations;
     (2) Establish requirements for licenses, permits, certificates and registrations;
     (3) Establish procedures for submitting, approving and rejecting applications for licenses, permits, certificates and registrations;
     (4) Determine the qualifications of any applicant for licenses, permits, certificates and registrations;
     (5) Prepare, conduct, administer and grade examinations for professional licenses and certificates;
     (6) Determine the passing grade for the examinations;  
     (7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;
     (8) Hire, discharge, establish the job requirements and fix the compensation of the executive director;
     (9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators/inspectors and contracted employees necessary to enforce the provisions of this article: Provided, That any investigator/inspector employed by the board on July 1, 2009, shall retain their coverage under the classified service, including job classification, job tenure and salary, until that person retires or is dismissed: Provided, however, That nothing may prohibit the disciplining or dismissal of any investigator/inspector for cause;
     (10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;
     (11) Establish the criteria for the training of investigators/inspectors;
     (12) Set the requirements for investigations and inspections;
     (13) Conduct disciplinary hearings of persons regulated by the board;
     (14) Determine disciplinary action and issue orders;
     (15) Institute appropriate legal action for the enforcement of the provisions of this article;
     (16) Maintain an accurate registry of names and addresses of all persons regulated by the board;
     (17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;
     (18) Establish the continuing education requirements for professional licensees and certificate holders;
     (19) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, permits, certificates and registrations;
     (20) Establish a fee schedule;
     (21) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and
     (22) Take all other actions necessary and proper to effectuate the purposes of this article.
     (c) The board may:
     (1) Establish joint licenses;
     (2) Contract with third parties to administer the examinations required under the provisions of this article;
     (3) Sue and be sued in its official name as an agency of this state; and,
     (4) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.
§30-27-6. Rulemaking.
     (a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
     (1) Standards and requirements for licenses, permits, certificates and registrations;
     (2) Procedures for examinations and reexaminations;
     (3) Requirements for third parties to prepare and/or administer examinations and reexaminations;
     (4) Educational and experience requirements;
     (5) The passing grade on the examinations;
     (6) Standards for approval of courses and curriculum;
     (7) Procedures for the issuance and renewal of licenses, permits, certificates and registrations;
     (8) A fee schedule;
     (9) Continuing education requirements for professional licensees and certificate holders;
     (10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, permitees, certificate holders and registrants;
     (11) Designating the regions for investigators/inspectors;
     (12) Criteria for the training of investigators/inspectors;
     (13) Requirements for investigations and inspections;
     (14) Requirements for inactive or revoked licenses, permits, certificates and registrations;
     (15) Establishing the training program and