Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home
HOUSE: | Bills Introduced | Resolutions Introduced | Abstract | Topical Index | Committee Schedule | Calendar | Daily Calendar | Journal | Menu |

House Journal


Day 01 (01-08-2014)
Day 02 (01-09-2014)
Day 03 (01-10-2014)
Day 06 (01-13-2014)
Day 07 (01-14-2014)
Day 08 (01-15-2014)
Day 09 (01-16-2014)
Day 10 (01-17-2014)
Day 13 (01-20-2014)
Day 14 (01-21-2014)
Day 15 (01-22-2014)
Day 16 (01-23-2014)
Day 17 (01-24-2014)
Day 20 (01-27-2014)
Day 21 (01-28-2014)
Day 22 (01-29-2014)
Day 23 (01-30-2014)
Day 24 (01-31-2014)
Day 27 (02-03-2014)
Day 28 (02-04-2014)
Day 29 (02-05-2014)
Day 30 (02-06-2014)
Day 31 (02-07-2014)
Day 34 (02-10-2014)
Day 35 (02-11-2014)
Day 36 (02-12-2014)
Day 37 (02-13-2014)
Day 38 (02-14-2014)
Day 42 (02-18-2014)
Day 43 (02-19-2014)
Day 44 (02-20-2014)
Day 45 (02-21-2014)
Day 48 (02-24-2014)
Day 49 (02-25-2014)
Day 50 (02-26-2014)
Day 51 (02-27-2014)
Day 52 (02-28-2014)
Day 56 (03-04-2014)
Day 57 (03-05-2014)
Day 58 (03-06-2014)
Day 59 (03-07-2014)
Day 60 (03-08-2014)
Day 61 (03-09-2014)
Day 62 (03-10-2014)

Eighty-first Legislature

Second Regular Session

Held at Charleston

Published by the Clerk of the House

 

West Virginia Legislature

JOURNAL

of the

House of Delegates

colorseal.jpg



__________*__________



 

Monday, February 24, 2014

FORTY-EIGHTH DAY

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

 

 

            The House of Delegates met at 1:00 p.m., and was called to order by the Honorable Timothy R. Miley, 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, February 21, 2014, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate, to take effect July 1, 2014, and requested the concurrence of the House of Delegates in the passage, of

             Com. Sub. for S. B. 414 - “A Bill to amend and reenact §11-11-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §44-1-14 of said code, all relating to eliminating the filing of a nonprobate inventory form with the Tax Commissioner for decedents dying on and after July 1, 2014; providing for the filing of the nonprobate inventory form with the clerk of the county commission or fiduciary supervisor only; providing criminal penalties for failure to comply; and specifying effective dates”; which was referred to the Committee on the Judiciary then Finance.

Resolutions Introduced

            Delegate Swartzmiller offered the following resolution, which was read by its title and referred to the Committee on Rules:

            H. C. R. 105 - “Urging Congress to pass the Safe Freight Act as contained in H. R. 3040 providing that a freight train or light engine used in connection with the movement of freight have at least two individuals, one of whom is certified as a locomotive engineer and the other who is certified as a conductor.”

            Whereas, The freight rail system in West Virginia represents a significant component of the transportation infrastructure of the state and is vital to the support of the economy in mining, manufacturing and agriculture; and

            Whereas, The West Virginia rail system is comprised of two Class I railroads and eleven short line or regional railroads. The system contains 2,401 route miles of track. CSX Transportation is West Virginia’s largest carrier with 1,113 route miles of track. Norfolk Southern is next in size with 801 route miles of track. Short lines and Regional roads make up the remaining 487 route miles of track; and

            Whereas, Freight trains which can be up to two miles long and may carry millions of pounds of freight require adequate crew members for safe operation; and

            Whereas, On July 6, 2013, a runaway freight train tragically derailed and exploded, killing forty-seven people in the Canadian province of Quebec, partially due to the fact that the single-crew member for that train was unable to properly secure the cars to prevent the runaway. Rail system safety has a heightened priority after recent events and is a priority for both rail carriers and government agencies due to the potential impact of freight train related accidents on the general public and the efficiency of rail operations; and

            Whereas, H. R. 3040, the Safe Freight Act, is pending in Congress and would simply require a freight train crew to consist of at least two individual. Staffing a freight train with a certified conductor and a certified engineer would continue to provide safe grade crossings, sustain efficient operations and provide proper and adequate securement capabilities; therefore, be it

            Resolved by the Legislature of West Virginia:

            That Congress is urged to pass the Safe Freight Act as contained in H. R. 3040 providing that a freight train or light engine used in connection with the movement of freight have at least two individuals, one of whom is certified as a locomotive engineer and the other who is certified as a conductor; and, be it

            Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the members of the West Virginia delegation to the Congress of the United States.

Daily Calendar

Unfinished Business

            The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:

            Com. Sub. for S. C. R. 2, Requesting DOH name bridge in Harrison County “U. S. Navy Petty Officer First Class Kevin S. Rux Memorial Bridge”,

            Com. Sub. for S. C. R. 3, Requesting DOH name bridge in Gypsy, Harrison County, “U. S. Navy Seaman First Class Sam Lopez Bridge”,

            S. C. R. 4, Requesting DOH name new bridge crossing West Fork of Monongahela River at Shinnston “Veterans Memorial Bridge”,

            S. C. R. 5, Requesting DOH name bridge in Kanawha County “Army PFC William Floyd Harrison Memorial Bridge”,

            And,

            Com. Sub. for S. C. R. 8, Requesting DOH name bridge in West Milford, Harrison County, “USMC Cpl. Gene William Somers, Jr., Memorial Bridge”.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

            Com. Sub. for S. C. R. 9, Requesting DOH name portion of U. S. Rt. 522 “Trooper First Class Thomas Dean Hercules and Trooper Charles Henry Johnson Memorial Highway”; coming up in regular order, as unfinished business, was read by the Clerk and adopted.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

            The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:

            Com. Sub. for S. C. R. 10, Requesting DOH name bridge in Switzer, Logan County, “U. S. Army Cpl. James Melvin ‘Pete’ Spradlin Memorial Bridge”,

            Com. Sub. for S. C. R. 11, Requesting DOH name bridge in Logan “U. S. Army Major Thomas McElwain Memorial Bridge”,

            H. C. R. 68, Requesting the Joint Committee on Government and Finance to undertake a study of the development of a high speed commuter rail system in West Virginia.,

            Com. Sub. for H. C. R. 69, U.S. Army Corporal John L. Gibbs Memorial Bridge,

            Com. Sub. for H. C. R. 73, U.S. Army Captain David Van Camp Memorial Bridge,

            Com. Sub. for H. C. R. 74, Deputy Roger Lee Treadway Memorial Bridge,

            Com. Sub. for H. C. R. 82, U.S. Army Staff Sergeant Kenneth Amick Memorial Bridge,

            And, 

            H. C. R. 95, Betty Jo Delong Memorial Bridge.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein on those requiring the same.

Third ReadingH. J. R. 108, Nonprofit Youth Organization Tax Exemption Support Amendment; on third reading, coming up in regular order, was, on motion of Delegate White, laid over.

            Com. Sub. for H. B. 3011, Removing the provision that requires an applicant to meet federal requirements concerning the production, distribution and sale of industrial hemp prior to being licensed; 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. 132), and there were--yeas 88, nays 8, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Armstead, Arvon, Cooper, D. Evans, Gearheart, Kinsey, Lane and O’Neal.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3011) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4137, Relating to more equitable distribution to county boards of reimbursement of the costs of serving certain special needs students; 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. 133), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4137) passed.

            Delegate White moved that the bill take effect July 1, 2014.

            On this question, the yeas and nays were taken (Roll No. 134), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            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. 4137) takes effect July 1, 2014.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4290, Revising the regulatory structure of money transmitters and other entities; 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. 135), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4290) passed.

            Delegate White moved that the bill take effect July 1, 2014.

            On this question, the yeas and nays were taken (Roll No. 136), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            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. 4290) takes effect July 1, 2014.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4304, Providing rules for motor vehicles passing bicycles on roadways; 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. 137), and there were--yeas 70, nays 26, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Arvon, Ashley, Cadle, Cooper, Cowles, Ellington, A. Evans, Faircloth, Ferns, Folk, Gearheart, Hamilton, Hamrick, Householder, Howell, Kump, Miller, O’Neal, Overington, Romine, Rowan, Shott, Sobonya, Storch, Sumner and Walker.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4304) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4312, Creating a certification for emergency medical technician-industrial; on third reading, coming up in regular order, was, on motion of Delegate White, laid over.

            Com. Sub. for H. B. 4373, Relating to driver education programs; 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. 138), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4373) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4392, Regulating persons who perform work on heating, ventilating and cooling systems and fire dampers; on third reading, coming up in regular order, was read a third time.

            Delegate Householder requested to be excused from voting on the passage of Com. Sub. for H. B. 4392 under the provisions of House Rule 49.

            The Speaker replied that the Delegate 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 Member from voting.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 139), and there were--yeas 62, nays 34, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Anderson, Andes, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Cooper, Cowles, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Gearheart, Hamrick, Householder, Howell, Kump, Lane, McCuskey, E. Nelson, O’Neal, Overington, Romine, Rowan, Shott, R. Smith, Walters and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4392) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4393, Creating the Dangerous Wild Animals Act; on third reading, coming up in regular order, was, at the request of Delegate White, and by unanimous consent, placed at the foot of bills on third reading.

            Com. Sub. for H. B. 4410, Redefining auctioneer exceptions; 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. 140), and there were--yeas 90, nays 6, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Anderson, Faircloth, Hamilton, Householder, Lane and R. Smith.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4410) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4460, Relating to violating provisions of the civil service law for paid fire departments; on third reading, coming up in regular order, was read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 141), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Gearheart and Kump.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4460) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4488, Eliminating the requirement for notarization of the articles of incorporation for cooperative associations; 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. 142), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4488) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4490, Attorney General Ethics and Accountability Act; on third reading, coming up in regular order with amendments pending and with the restricted right to amend jointly by Delegates Manchin and Shott, was reported by the Clerk.

            Delegate Manchin moved to amend the bill on page three, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof, the following:

            “That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §5-3-1a; and that §5-3-2, §5-3-3, §5-3-4 and §5-3-5 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 3. ATTORNEY GENERAL.

§5-3-1a. General authority of Attorney General; recusal when conflict or perceived conflict of interest; and common law abrogation.

            (a) Conflicts of interest- Because the Attorney General is the legal representative of the State of West Virginia, there exists with this office the highest duty to provide legal services in a manner that preserves public trust and confidence. Therefore, the following ethical standards apply to the Attorney General:

            (1) Except as law may otherwise expressly permit, the Attorney General may not knowingly undertake, continue representation or participate in any cause where there is a potential or actual conflict of interest.

            (2) Where a potential or actual conflict exists, the Attorney General shall immediately withdraw from the cause and appoint a special assistant Attorney General pursuant to section three of this article, in his or her place.

            (A) A person may not be appointed as a special assistant Attorney General if such appointment will result in a conflict of interest with any party to the cause for which the person is being appointed.

            (B) A special assistant Attorney General engaged pursuant to this subdivision shall be monitored and supervised by the Governor.

            (3) A withdraw from a cause by the Attorney General pursuant to subdivision (2) is applicable to all assistant Attorneys General and all other employees of the Office of the Attorney General and consequently, no assistant Attorney General or other employee of the Office of the Attorney General may advise or otherwise participate in any cause from which the Attorney General has withdrawn.

            (b) For purposes of this section, a conflict of interest exists when:

            (1) The Attorney General or any immediate family member of the Attorney General has been employed, under contract or otherwise received economic compensation from a party to any cause under the jurisdiction of his or her office within five years prior to the commencement of the cause;

            (2) The Attorney General asserts any legal position or takes any action in a legal proceeding or other representation that is inconsistent with the legal position taken by the state officer, board, agency or other political subdivision whom his or her office is representing; or

            (3) Representation is precluded by the West Virginia Rules of Professional Conduct.

            (c) Disqualification of assistant or special assistant. Neither the Attorney General nor the Office of the Attorney General is necessarily deemed disqualified from a cause in which any assistant Attorney General or special assistant Attorney General is disqualified, however, the Attorney General must ensure that the disqualified assistant or special assistant does not participate, in any manner whatsoever, in the cause from which they are disqualified.

            (d) Common law powers.- The common law authority of the Attorney General is specifically abrogated to the extent it is inconsistent with any provision of this article.

            (e) ‘Cause’ defined. As used in this article, the term ‘cause’ includes any judicial or other administrative proceeding involving a specific party or parties.

§5-3-2. Act as counsel for state; duties and powers as to prosecuting attorneys; defense of National Guardsmen.

            (a) The Attorney General shall:

            (1) Appear as counsel for the state in all causes pending in the Supreme Court of Appeals, or in any federal court, in which the state, is interested officer, board or agency of the state is a party; he

            (2) shall Appear in any cause in which the state is interested that is pending in any other court in the state, on the written request of the Governor, and when such appearance is entered he the Attorney General shall take charge of and have control of such cause; he shall

            (3) Defend all actions and proceedings against any state officer in his or her official capacity in any of the courts of this state or any of the federal courts when the state is not interested in such cause against such officer, but should the state be interested against such officer, he or she shall appear for the state; he shall

            (4) Institute and prosecute all civil actions and proceedings in favor of or for the use of the state which may be necessary in the execution of the official duties of any state officer, board or commission on the written request of such officer, board or commission.he shall,;

            (5) When requested by the prosecuting attorney of a county wherein a state institution of correction is located, provide attorneys for appointment as special prosecuting attorneys to assist the prosecuting attorney of said county in the prosecution of criminal proceedings when, in the opinion of the circuit judge of said county, or a justice of the West Virginia Supreme Court of Appeals, extraordinary circumstances exist at said institution which render the financial resources of the office of the prosecuting attorney inadequate to prosecute said cases;.

            (b) he The Attorney General may:

            (1) Consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office. and may require a written report from them of the state and condition of the several causes, in which the state is a party, pending in the courts of their respective counties; he may             (2) Require the several prosecuting attorneys to perform, within the respective counties in which they are elected, any of the legal duties required to be performed by the Attorney General which are not inconsistent with the duties of the prosecuting attorneys as the legal representatives of their respective counties; when the performance of any such duties by the prosecuting attorney conflicts with his or her duties as the legal representative of his or her county, or for any reason any prosecuting attorney is disqualified, from performing such duties, the Attorney General may require the prosecuting attorney of any other county to perform such duties. in any county other than that in which such prosecuting attorney is elected and for the performance of which duties outside of the county in which he is elected The prosecuting attorney shall be paid his or her actual traveling and other expenses out of the appropriation for contingent expenses for the department for which such services to another county are rendered.

            (c) The Attorney General shall keep in proper books, a register of all causes prosecuted or defended by him or her in behalf of the state or its officers and of the proceedings had in relation thereto, and deliver the same to his or her successor in office. and he The Attorney General shall preserve in his or her office all his official opinions of the Office of the Attorney General and publish the same in his or her biennial report.

            (d) Upon request of any member of the West Virginia National Guard who has been named defendant in any civil action arising out of that guardsman’s action while under orders from the Governor relating to National Guard assistance in disasters and civil disorders, the Attorney General shall appear as counsel for and represent such guardsman.

§5-3-3. Assistants to Attorney General; appointment of special assistants to the Attorney General.

            (a) The Attorney General may appoint such assistant attorneys general as may be necessary to properly perform the duties of his or her office. The total compensation of all such assistants shall be within the limits of the amounts appropriated by the Legislature for personal services. All assistant attorneys general so appointed shall serve at the pleasure of the Attorney General and shall perform such duties as he or she may require of them.

            (b) If the Attorney General seeks to enter into a contract for legal services with an private attorney or firm, whether or not such private attorney or firm is designated at any time as an assistant or special assistant attorney general, a contract for legal services shall include the following:

            (1) A statement of the hourly rate or contingent fee to be paid;

            (2) A statement of the manner in which expenses that may be incurred by the contractor, including, but not limited to, items such as travel, telephone and copying, will be reimbursed;

            (3) Certification by the contractor that he or she will agree to any relevant statutory confidentiality requirements; and

            (4) Certification by the contractor that neither he or she, nor any person in practice with the contractor, represents nor may represent during the pendency of the contract, a person who has a claim or putative claim involving any matter for which the applicant or any person in practice with the applicant has been retained by the Attorney General.

            (c) Nothing in this section creates or expands any rights of the Attorney General that are not otherwise authorized by this code. All laws or parts of laws inconsistent with the provisions hereof are hereby amended to be in harmony with the provisions of this section.

§5-3-4. Biannual report to Governor.

            (a) The Attorney General shall annually biannually, on or before May 1 and November 1, deliver to the Governor a report of the state and condition of the several causes, in which the state or the Attorney General is a party, pending in courts mentioned in section two of this article, or in any other chapter of this code, as of December 30 and June 30, immediately preceding May 1 and November 1, or closed or concluded during the preceding six month period.

            (b) The report required by this section shall also include:

            (1) The terms and conditions upon which the Attorney General has engaged any special assistant Attorney General or any other person to perform legal services of any kind, including a copy of all contracts for such legal services;

            (2) Amounts paid to any special assistant Attorney General, or other persons under contract with the Attorney General to perform legal services, for representing the state or a public officer or employee of the state; and

            (3) The amount of judgments, settlements, costs and fees awarded by the courts to the Attorney General or persons with whom he or she has contracted for legal services, including any special assistant Attorney General, in cases closed or concluded during the preceding fiscal year of the state.

§5-3-5. Fees to be paid into State Treasury. Attorney General’s Litigation Support Fund.

            On the final determination of any cause in any of the courts mentioned in the second section of this article, in which the Attorney General appeared for the state, the clerk thereof shall certify to the Auditor the fee of the Attorney General which was taxed in the bill of costs against the defendant, and when such fee shall be collected it shall be paid into the state Treasury and placed to the credit of the state fund.

            (a) The Legislature hereby finds and declares that:

            (1) Public accountability for funds or other assets recovered in a legal action or settlement by or on behalf of the general public, the state or its officers, agencies or political subdivisions is appropriate and required, whether the character of the assets or funds recovered is public or private;

            (2) Public accountability demands the applicability of the freedom of information law, article one, chapter twenty-nine-b of this code, and the open governmental proceedings law, article nine-a, chapter six of this code, so that the actions of individuals or agencies who are charged with the administration of funds or other assets are conducted in full view, and are open to public scrutiny; and

            (3) The power to appropriate funds for public purposes is solely within the purview of the legislative branch of government, and the Legislature, as a steward of the budgetary process, shall take steps to assure that settlements are handled in a manner that assures maximum accountability to the citizens of the state and their duly elected legislative representatives.

            (b) There is established in the State Treasury a special fund to be known as the ‘Attorney General’s Litigation Support Fund’.

            (c) The fund shall consist of any and all attorney fees, expenses and costs awarded to the Attorney General in any cause. Attorney fees, expenses and costs awarded to the Attorney General shall be deposited in the fund and shall be available for expenditure by the Attorney General only upon appropriation by the Legislature in accordance with the provisions of West Virginia Constitution, article six, section fifty-one.

            (d) All moneys collected or recovered by the Attorney General, pursuant to any cause or in settlement of any cause or claim asserted by or against the people of West Virginia, the State of West Virginia, or any of its departments, agencies, institutions, officers, employees, or political subdivisions thereof, not specifically allocated by a court order as attorney fees, cost and expenses, shall be deposited by the Attorney General in the treasury of the state to the credit of the state fund, general revenue, unless:

            (1) The recovery or a portion thereof was on behalf of a special fund established under the provisions of this code, in which event those moneys shall be deposited in the special fund if it is established in the State Treasury, or into a special fund established for that purpose in the State Treasury;

            (2) The recovery or a portion thereof was on behalf of or required to be held in a trust fund, in which event those moneys shall be deposited in a special fund established in the State Treasury to be held in trust;

            (3) The recovery was on behalf of a political subdivision of the state, in which event the remainder of the recovery shall be transmitted to the treasurer of such political subdivision for deposit in its general fund;

            (4) Amounts were recovered as attorney fees and expenses separate and apart from any amounts, whether on an hourly or contingent fee basis, recovered by the state or the Attorney General by a person not employed by the state who provided legal services in the matter as a special assistant attorney general appointed by the Attorney General for that purpose, in which event, those attorney fees and expenses may not be deposited into the Treasury of the state nor into the Attorney General’s Litigation Support Fund, but retained by the special assistant Attorney General; or

            (5) The recovery or a portion thereof was for specifically identified persons, in which event those moneys shall be deposited into a pass through account in a banking institution designated by and administered subject to conditions established by the State Treasurer to ensure the accountability of the disbursement of the funds.

            (e) The actual expenses of the Office of the Attorney General resulting from litigation or a settlement shall be certified by the Attorney General to the Governor, the Secretary of the Department of Administration, the President of the Senate and the Speaker of the House of Delegates.

            (f) Notwithstanding any provision of this subsection to the contrary, or any other provision of law, the Attorney General may not expend the proceeds of judgments or settlements of any kind, or any part thereof, for the use of the Office of the Attorney General in excess of the actual expenses of the Office of the Attorney General pursuant to the cause or the issue settled.

            (g) The Attorney General may expend moneys appropriated by the Legislature from the Attorney General’s Litigation Support Fund for the performance of any of the powers, functions, duties, and responsibilities of the Office of the Attorney General.

            (h) The Attorney General’s Litigation Support Fund shall be placed under the management or administration of the Attorney General for the purpose of performing any of the functions, duties, powers, and responsibilities of the Office of the Attorney General and all moneys deposited in the fund are available for appropriation to the Office of the Attorney General.

            (i) The appropriation of these moneys may be in addition to any moneys appropriated to the Office of the Attorney General from any other sources.

            (j) The Attorney General, nor any employee of that office, may have any financial interest in the investment of moneys in the fund nor receive any commission with respect thereto.

            (k) The Attorney General shall keep detailed permanent records of all expenditures and disbursements from the fund.

            (l) Prior to the entry of a judgment order that will result in the recovery of funds or assets by the state, the Attorney General or other officer or agency of the state who is a party to or has entered an appearance in any cause, shall advise the court of the provisions of this section.

            (m) The Attorney General or other officer or agency of the state acting on behalf of the State, may not agree to the disbursement of the proceeds of any cause that is contrary to the provisions of this section.

* * * * * * * * *

            Delegates Hamilton and Espinosa moved to amend the amendment on page six, following section two, line sixteen, following the word “guardsman”, by inserting the following:

§5-3-2b. Prosecutorial powers.

            The attorney general may investigate and prosecute on behalf of the state any offense which is committed relating to violations of any law within this state. Such prosecution shall be in accordance with the rules and procedures attendant to criminal prosecutions generally. Law enforcement agencies shall provide assistance required by the attorney general for this purpose.”

            On the adoption of the amendment to the amendment, Delegate Hamilton demanded the yeas and nays, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 143), and there were--yeas 43, nays 53, absent and not voting 4, with the yeas and absent and not voting being as follows:

            Yeas: Ambler, Anderson, Andes, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Canterbury, Cooper, Cowles, Ellem, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Frich, Gearheart, Hamilton, Hamrick, Householder, Howell, Kump, Lane, Miller, E. Nelson, O’Neal, Overington, Pasdon, Romine, Rowan, Shott, R. Smith, Sobonya, Storch, Sumner, Walters and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

             So, a majority of the members present and voting having not voted in the affirmative, the amendment to the amendment was not adopted.

            Delegate Frich moved to amend the amendment on page three, line twenty-seven, section 1a, following the word “parties”, by inserting the following:

            “(f) Investigatory Powers of the Attorney General–The Attorney General shall have authority to conduct investigations of all members of the Board of Public Works, members of the Legislature, and Justices of the West Virginia Supreme Court of Appeals to ensure their compliance with the ethical standards of this section. Upon completing any investigation that results in a conclusion by the Attorney General that a violation of these standards has occurred, the Attorney General may issue a report to the Governor, President of the Senate, Speaker of the House of Delegates, the Chief Justice of the West Virginia Supreme Court of Appeals and the Ethics Commission.”

            On the adoption of the amendment to the amendment, Delegate Frich demanded the yeas and nays, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 144), and there were--yeas 42, nays 54, absent and not voting 4, with the yeas and absent and not voting being as follows:

            Yeas: Ambler, Anderson, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Canterbury, Cooper, Cowles, Ellem, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Frich, Gearheart, Hamilton, Hamrick, Householder, Howell, Kump, Lane, Miller, E. Nelson, O’Neal, Overington, Pasdon, Romine, Rowan, Shott, R. Smith, Sobonya, Storch, Sumner, Walters and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

             So, a majority of the members present and voting having not voted in the affirmative, the amendment to the amendment was not adopted.

            The Clerk then reported an amendment offered by Delegate Shott.

            Whereupon,

            Delegate Shott asked and obtained unanimous consent that the amendment be withdrawn.

            The question before the House being the amendment offered by Delegate Manchin, the yeas and nays were demanded, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 145), and there were--yeas 53, nays 43, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Ambler, Andes, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Canterbury, Cooper, Cowles, Ellem, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Frich, Gearheart, Hamilton, Hamrick, Householder, Howell, Kump, Lane, McCuskey, Miller, E. Nelson, O’Neal, Overington, Pasdon, Romine, Rowan, Shott, R. Smith, Sobonya, Storch, Sumner, Walters and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

             So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.

            Having been engrossed, the bill was then read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 146), and there were--yeas 52, nays 44, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Ambler, Anderson, Andes, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Canterbury, Cooper, Cowles, Ellem, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Frich, Gearheart, Hamilton, Hamrick, Householder, Howell, Kump, Lane, McCuskey, Miller, E. Nelson, O’Neal, Overington, Pasdon, Romine, Rowan, Shott, R. Smith, Sobonya, Storch, Sumner, Walters and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4490) passed.

            On motion of Delegate Manchin, the title of the bill was amended to read as follows:

            Com. Sub. for H. B. 4490 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-3-1a; to amend and reenact §5-3-2, §5-3-3, §5-3-4 and §5-3-5 of said code, all Attorney General Ethics and Accountability Act; defining conflict of interest for the Attorney General; mandating the effect of a disqualification of an assistant or special assistant Attorney General; authorizing the appointment of a special assistant Attorney General in the event of a conflict of interest; legislative abrogation of common law powers; authority of Attorney General to act a counsel for state; describing the duties and powers of the Attorney General; authorizing the Attorney General to enter into contracts for legal services; requiring particular provisions for contracts for legal services; requiring a biannual report to the Governor of the activities of the Attorney General; describing the contents of the biannual report; establishing the Attorney General’s Litigation; requiring the deposit of fees, expenses and costs; requiring the deposit of the proceeds of causes to be deposited in the general revenue with specific exceptions; certification of Attorney General’s expenses; necessity of appropriation by the Legislature; management of the special revenue account; and requiring detailed records of expenditures and disbursements.”

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4503, Declaring certain claims against the state and its agencies to be moral obligations of the state; 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. 147), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4503) passed.

            Delegate White moved that the bill take effect from its passage.

            On this question, the yeas and nays were taken (Roll No. 148), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4503) takes effect from its passage.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4504, Providing for sharing juvenile records in certain circumstances with another state; 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. 149), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4504) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4529, Relating to the sale of wine; 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. 150), and there were--yeas 83, nays 13, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Armstead, Arvon, Barker, Border, A. Evans, D. Evans, Howell, Kump, Lane, Overington, R. Smith, Sobonya and Sumner.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4529) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4549, Clarifying the regulation of nonintoxicating beer brewers and distributors, agreements, networks, products, brands and extensions of a line of brands; on third reading, coming up in regular order, was, on motion of Delegate White, laid over.

            Com. Sub. for H. B. 4560, Relating to reimbursement for copies of medical records; 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. 151), and there were--yeas 80, nays 16, absent and not voting 4, with the nays and absent and not voting being as follows:

            Nays: Andes, Arvon, Ashley, Azinger, Cooper, Ellington, Espinosa, Hamilton, Howell, McCuskey, Miller, E. Nelson, O’Neal, Pasdon, Sobonya and Sumner.

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4560) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            H. B. 4618, Establishing transformative system of support for early literacy; 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. 152), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

            Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4618) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

            Com. Sub. for H. B. 4393, Creating the Dangerous Wild Animals Act; having been postponed in earlier proceedings, was, on motion of Delegate White, taken up for further consideration.

            The bill was then read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 153), and there were--yeas 72, nays 23, absent and not voting 5, with the nays and absent and not voting being as follows:

            Nays: Andes, Armstead, Ashley, Azinger, Border, Butler, Cadle, Cowles, Espinosa, Faircloth, Folk, Frich, Gearheart, Hamrick, Householder, Howell, Kinsey, Kump, Lane, Shott, R. Smith, Sobonya and Westfall.

            Absent and Not Voting: Barill, Ireland, J. Nelson, Raines 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. 4393) passed.

            Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Second ReadingCom. Sub. for S. B. 603, Relating to testing for presence of methane in underground mines;

on second reading, coming up in regular order, was read a second time.

            At the request of Delegate White, and by unanimous consent, the bill was advanced to third reading with amendments pending and the restricted right to amend by Delegate Manchin, and the rule was suspended to permit the consideration of the amendment on that reading.

            Com. Sub. for H. B. 4001, Government Fraud Prevention Act; on second reading, coming up in regular order, was read a second time.

            Delegate Armstead arose to a point of inquiry regarding the parliamentary status of amendments heretofore filed with the Clerk. He specifically inquired if the consideration of one strike and insert amendment would preclude the consideration of an additional strike and insert amendment.

            The Speaker, following consultation with the Clerk, replied that such amendments could both be considered.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:

            “That §9-7-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §14-4-1, §14-4-2, §14-4-3, §14-4-4, §14-4-5, §14-4-6, §14-4-7, §14-4-8, §14-4-9 and §14-4-10, all to read as follows:

CHAPTER 9. HUMAN SERVICES.

ARTICLE 7. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.

§9-7-6. Civil remedies.

            (a) Any person, firm, corporation or other entity which willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, devise or artifice on behalf of himself, herself, itself, or others, obtains or attempts to obtain benefits or payments or allowances under the medical programs of the Department of Health and Human Resources to which he or she or it is not entitled, or, in a greater amount than that to which he or she or it is entitled, or any provisions of section two, article four, chapter fourteen of this code, shall, in addition to any other penalties provided by law, be liable to the Department of Health and Human Resources in an amount equal to three times the amount of such benefits, payments or allowances to which he or she or it is not entitled, for civil penalties of (1) payment of interest on the amount of the excess benefits or payments at the maximum legal rate in effect on the date the payment was made to said person, firm, corporation, partnership or other legal entity for the period from the date upon which payment was made to the date upon which repayment is made to the State, (2) payment of an amount not to exceed three times the amount of such excess benefits or payments, (3) payment in the sum of not less than and not more than the civil penalty allowed under section two, article four, chapter fourteen of this code, as it may be adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub.L.101-410 for each excessive claim for assistance, benefits or payments, and (4) and shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.

            (b) No criminal action or indictment need be brought against any person, firm, corporation or other entity as a condition for establishing civil liability hereunder.

            (c) A civil action under this section may be prosecuted and maintained on behalf of the Department of Health and Human Resources by the Attorney General and the Attorney General’s assistants or a prosecuting attorney and the prosecuting attorney’s assistants or by any attorney in contract with or employed by the Department of Health and Human Resources to provide such representation.

CHAPTER 14. CLAIMS DUE AND AGAINST THE STATE.

ARTICLE 4. FALSE CLAIMS ACT.

§14-4-1. Definitions.

            As used in this article, unless the context requires otherwise:

            (1) ‘Attorney General’ means the West Virginia Attorney General, deputies, counsels or assistant attorneys general employed by the Office of the Attorney General and designated by the Attorney General to act pursuant to this article.

            (2) ‘Claim’ means any request or demand, whether under a contract or otherwise, for money or property, regardless of whether the state has title to the money or property, that (A) is presented to an officer, employee, or agent of the state or (B) is made to a contractor, grantee, or other recipient (i) if the money or property is to be spent or used on the state’s behalf or to advance a governmental program or interest and (ii) if the State provides or has provided any portion of the money or property requested or demanded or will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded. For purposes of this article, ‘claim’ does not include requests or demands for money or property that the state has paid to an individual as compensation for employment with the state or as income subsidy with no restriction on that individual’s use of the money or property.

            (3) ‘State’ means the State of West Virginia, any agency of state government, and any political subdivision of the state.

            (4)’Employee’ includes an employee or officer of the State.

            (5) ‘Employer’ includes the state.

            (6) ‘Investigation’ means any inquiry conducted by an investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of this article.

            (7) ‘Material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

            (8) ‘Obligation’ means an established duty, whether or not fixed, arising from (A) an express or implied contractual, grantor-grantee, or licensor-licensee relationship; (B) a fee-based or similar relationship; (C) a statute, regulation or rule; or (D) the retention of any overpayment.

            (9) ‘Person’ includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.

§14-4-2. False Claims; civil penalties.

            (a) Any person who:

            (1) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

            (2) Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

            (3) Conspires to commit a violation of subdivision (1), (2), (4), (5), (6), or (7);

            (4) Has possession, custody, or control of property or money used, or to be used, by the state and knowingly delivers, or causes to be delivered, less than all such money or property;

            (5) Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the State and, intending to defraud the State, makes or delivers the receipt without completely knowing that the information on the receipt is true;

            (6) Knowingly buys or receives as a pledge of an obligation or debt, public property from an officer or employee of the State who lawfully may not sell or pledge the property; or

            (7) Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the State or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the State;

shall be liable to the state for a civil penalty of not less than $ 5,500 and not more than $ 11,000, as may be adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461; Public Law 104-410), plus three times the amount of damages sustained by the State.

            (b) A person violating this section shall be liable to the state for reasonable attorney fees and costs of a civil action brought to recover any such penalties or damages. All such fees and costs shall be paid to the Attorney General’s Office by the defendant and shall not be included in any damages or civil penalties recovered in a civil action based on a violation of this section.

            (c) If the court finds that:

            (1) The person committing the violation of this section furnished officials of the state responsible for investigating false claims violations with all information known to the person about the violation within thirty days after the date on which the defendant first obtained the information;

            (2) Such person fully cooperated with any state investigation of such violation;

            (3) At the time such person furnished the state with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to such violation; and

            (4) The person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than two times the amount of damages that the state sustains because of the act of that person. A person violating this section shall also be liable to the state for the costs of a civil action brought to recover any such penalty or damages.

            (d) For purposes of this section, the terms ‘knowing’ and ‘knowingly’ mean that a person, with respect to information,

            (1) Has actual knowledge of the information;

            (2) Acts in deliberate ignorance of the truth or falsity of the information; or

            (3) Acts in reckless disregard of the truth or falsity of the information and require no proof of specific intent to defraud.

            (e) This section shall not apply to claims, records or statements relating to state or local taxes.

§14-4-3. Attorney General; investigation, civil action.

            The Attorney General shall investigate any violation of section two of this article. If the Attorney General finds that a person has violated or is violating section two, the Attorney General may bring a civil action under this section.

§14-4-4. Civil actions filed by private persons; state may intervene.

            (a) A person may bring a civil action for a violation of section two for the person and for the state. The action shall be brought in the name of the state. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.

            (b) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the state. The complaint shall be filed in camera, shall remain under seal for at least one hundred twenty days, and shall not be served on the defendant until the court so orders. The state may elect to intervene and proceed with the action within one hundred twenty days after it receives both the complaint and the material evidence and information.

            (c) The state may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any motion for judgment filed under this section until twenty-one days after the complaint is unsealed and served upon the defendant.

            (d) Before the expiration of the one hundred twenty day period or any extensions obtained under subsection (c), the state shall proceed with the action, in which case the action shall be conducted by the state, or notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to prosecute the action.

            (e) When a person brings an action under this section, no person other than the state may intervene or bring a related action based on the facts underlying the pending action.

§14-4-5. Rights of private plaintiff and state.

            (a) If the state proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations of this section.

            (b) The state may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the state of the filing of the complaint and the court has provided the person with an opportunity for a hearing on the complaint.

            (c) The state may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera. The state may, for good cause shown, move the court for a partial lifting of the seal to facilitate the investigative process or settlement.

            (d) Upon a showing by the state that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the state’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, such as (1) limiting the number of witnesses the person may call; (2) limiting the length of the testimony of such witnesses; (3) limiting the person’s cross-examination of witnesses; and (4) otherwise limiting the participation by the person in the litigation.

            (e) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.

            (f) If the state elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the state so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the state’s expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the state to intervene at a later date upon a showing of good cause.

            (g) Whether or not the state proceeds with the action, upon a showing by the state that certain actions of discovery by the person initiating the action would interfere with the state’s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.

            (h) Notwithstanding the provisions of subsection (b) of section four, the state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this article. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to a court of competent jurisdiction of the state, if the time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.

§14-4-6. Award to private plaintiff.

            (a)Except as hereinafter provided, if the state proceeds with an action brought by a person under section four, such person shall receive at least fifteen percent but not more than twenty-five percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or state auditor’s report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under this section shall be made from the proceeds of the award. Any such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.

            (b) If the state does not proceed with an action, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent and not more than thirty percent of the proceeds of the award or settlement and shall be paid out of the proceeds. Such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.

            (c) Whether or not the state proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of section two of this article upon which the action was brought, or if the person bringing the action is convicted of criminal conduct arising from his role in the violation of section two, that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the state to continue the action.

            (d) If the state does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

            (e) After deducting any distributions made under subsection (a), (b), (c) or (d) of this section, the balance of any funds recovered by the state in an action brought under this article shall be deposited into a special revenue account which is hereby created in the state treasury and shall be known as the ‘state false claims act fund’. The fund shall be administered by the secretary of revenue and all moneys deposited into the fund shall be expended, upon transfer to the appropriate accounts pursuant to appropriation of the Legislature, allocated in such amounts as may be determined by the Legislature, solely for the purposes of secondary road maintenance, volunteer fire departments and Title XIX waiver for senior citizens.

§14-4-7. Certain actions barred; relief from employment discrimination; waiver of sovereign                      immunity.

            (a) No court shall have jurisdiction over any action brought under this article by an inmate incarcerated within a state or local correctional facility.

            (c) No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the state, any political subdivision of the state, a member of the state legislature, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the State when the action was brought. For purposes of this section, ‘exempt official’ means the Governor, Lieutenant Governor, Attorney General and the secretaries, directors or members of any department, authority, board, bureau, commission or agency of the State or any political subdivision of the state.

            (d) In no event may a person bring an action under this article that is based upon allegations or transactions that are the subject of a civil suit or an administrative proceeding in which the state is already a party.

            (e) The court shall dismiss an action or claim under four unless opposed by the state if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil or administrative hearing in which the State or its agent is a party, in a West Virginia legislative, administrative, or state auditor’s report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, ‘original source’ means an individual (1) who either prior to a public disclosure has voluntarily disclosed to the state the information on which the allegations or transactions in a claim are based or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the state before filing an action under this article.

            (f) Except as otherwise provided in this section, the state may not be liable for expenses a person incurs in bringing an action under this article.

§14-4-9. Private action for retaliatory actions.

            (a) Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this article or other efforts to stop one or more violations of this article.

            (b) Relief shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney fees.

            (c) Any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process. An action under this section may be brought in a court of competent jurisdiction for the relief provided in this section, but may not be brought more than three years after the date the discrimination occurred.

            (d) This section shall constitute a waiver of sovereign immunity and creates a cause of action by an employee against the State if the state is the employer responsible for the adverse employment action that would entitle the employee to the relief set forth in this section.

§14-4-10. Procedure; statute of limitations.

            (a) A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the state.

            (b) A civil action under section three or four may not be brought (1) more than six years after the date on which the violation is committed or (2) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the state charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

            (c) If the state elects to intervene and proceed with an action brought under section four, the state may file its own complaint or amend the complaint of a person who has brought an action under section four to clarify or add detail to any claim in which the state is intervening and to add any additional claim for which the state contends it is entitled to relief. Any complaint filed by the state pursuant to this subsection shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the state arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in such person’s complaint.

            (d) In any action brought under section three or four, the state shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

            (e) Notwithstanding any other provision of law, a final judgment rendered in favor of the state in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and which is brought under section three or four.

* * * * * * * * *

            On motion of Delegate Manchin the amendment was amended on page three, line four by striking out the words “False Claim Act” and inserting in lieu thereof the words “Government Fraud Prevention Act”.

            On page fifteen, section nine, line twenty-one, by striking out the citation §14-4-9 and inserting in lieu thereof the citation §14-4-8.

            On page sixteen, section ten, line twenty-three, by striking out the citation §14-4-10 and inserting in lieu thereof the citation §14-4-9.

            And,

            By amending the enacting section to read as follow:

            “That §9-7-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §14-4-1, §14-4-2, §14-4-3, §14-4-4, §14-4-5, §14-4-6, §14-4-7, §14-4-8 and §14-4-9, all to read as follows” followed by a colon.

            The Judiciary Committee amendment, as amended, was then adopted.

            Delegates Shott, Lane, Espinosa and McCuskey moved to amend the amendment, by striking out everything after the enacting clause and inserting in lieu thereof the following:

            “That §9-7-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §14-4-1, §14-4-2, §14-4-3, §14-4-4, §14-4-5, §14-4-6, §14-4-7, §14-4-8, §14-4-9, §14-4-10, §14-4-11, and §14-4-12, all to read as follows:

CHAPTER 9. HUMAN SERVICES.

ARTICLE 7. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.

§9-7-6. Civil remedies.

            (a) Any person, firm, corporation or other entity which willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, devise or artifice on behalf of himself, herself, itself, or others, obtains or attempts to obtain benefits or payments or allowances under the medical programs of the Department of Health and Human Resources to which he or she or it is not entitled, or, in a greater amount than that to which he or she or it is entitled, or any provisions of section two, article four, chapter fourteen of this code, shall, in addition to any other penalties provided by law, be liable to the Department of Health and Human Resources in an amount equal to three times the amount of such benefits, payments or allowances to which he or she or it is not entitled, for civil penalties of (1) payment of interest on the amount of the excess benefits or payments at the maximum legal rate in effect on the date the payment was made to said person, firm, corporation, partnership or other legal entity for the period from the date upon which payment was made to the date upon which repayment is made to the State, (2) payment of an amount not to exceed three times the amount of such excess benefits or payments, (3) payment in the sum of not less than and not more than the civil penalty allowed under section two, article four, chapter fourteen of this code, as it may be adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub.L.101-410 for each excessive claim for assistance, benefits or payments, and (4) and shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.

            (b) No criminal action or indictment need be brought against any person, firm, corporation or other entity as a condition for establishing civil liability hereunder.

            (c) A civil action under this section may be prosecuted and maintained on behalf of the Department of Health and Human Resources by the Attorney General and the Attorney General’s assistants or a prosecuting attorney and the prosecuting attorney’s assistants or by any attorney in contract with or employed by the Department of Health and Human Resources to provide such representation.

CHAPTER 14. CLAIMS DUE AND AGAINST THE STATE.

ARTICLE 4. FALSE CLAIMS ACT.

§14-4-1. Definitions.

            For purposes of this article:

            (1) ‘Claim’ includes any request or demand, whether under a contract or otherwise, for money or property, whether the state has title to the money or property that:

            (A) Is presented to an officer, employee or agent of the state; or

            (B) Is made to a contractor, grantee or other recipient of the money or property, if the money or property is to be spent or used on the state’s behalf or to advance a state program or interest, and if the state:

            (i) Provides or has provided any portion of the money or property requested or demanded; or

            (ii) Will reimburse the contractor, grantee or other recipient for any portion of the money or property that is requested or demanded.

            (C) Exceeds in value the sum of $25,000 at the time the claim is presented; provided, that this limit does not apply to claims brought for fraud and abuse in the medicaid program.

            (D) ‘Claim’ does not include a request or demand for money or property that the state has paid to an individual as compensation for state employment or as an income subsidy with no restrictions on that individual’s use of the money or property.

            (2) ‘Employer’ includes any natural person, corporation, firm, association, organization, partnership, business, trust or state-affiliated entity involved in proprietary function, including state universities and state hospitals.

            (3) ‘Knowingly’ or ‘knowing’ means that a person has actual knowledge of the information. Innocent mistake shall be a defense to an action under this act; provided, that for claims brought for fraud and abuse in the medicaid program, and that for all such claims ‘knowingly’ or ‘knowing’ means that a person, with respect to information

            (A) Has actual knowledge of the information;

            (B) Acts in deliberate ignorance of the truth or falsity of the information; or

            (C) Acts in reckless disregard of the truth or falsity of the information; and

            (D) ‘Knowingly’ and ‘knowing’ require no specific intent to defraud.

            (4) ‘Material’ or ‘materially’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

            (5) ‘Obligation’ means an established duty, whether fixed, arising from an express or implied contractual, grantor-grantee or licensor-licensee relationship, from a fee-based or similar relationship, from statute or rule or from the retention of any overpayment.

            (6) ‘Person’ means any natural person, partnership, corporation, organization, association, business, trust or other legal entity, including any political subdivision of the state.

§14-4-2. Acts subjecting person to treble damages, costs and civil penalties; exceptions.

            (a) Any person who commits any of the following acts is liable to the state for three times the amount of damages which the state sustains because of the act of that person. A person who commits any of the following acts is also liable to the state for the costs, including attorneys’ fees, of a civil action brought to recover any of those penalties or damages, and may be liable to the state for a civil penalty of not less than and not more than the civil penalty allowed under the federal False Claims Act (31 U.S.C. § 3729 et. seq.), as may be adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461; Public Law 104-410), for each violation:

            (1) Knowingly presents or causes to be presented a false or fraudulent claim for payment or approval;

            (2) Knowingly makes, uses or causes to be made or used, a false record or statement material to a false or fraudulent claim;

            (3) Has possession, custody, or control of money or property used or to be used by the state and knowingly delivers or causes to be delivered less than all of that money or property;

            (4) Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the state and, intending to defraud the state, makes or delivers the receipt without completely knowing that the information on the receipt is true;

            (5) Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer, employee or agent of the state who is not lawfully authorized to sell or pledge the property;

            (6) Knowingly makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state;

            (7) Knowingly conceals, or knowingly and improperly avoids or decreases, an obligation to pay or transmit money or property to the state;

            (8) Conspires to violate any provision of this section.

            (b) This section does not apply to claims, records or statements made under the state tax laws contained in chapter eleven of the code.

            (c) Damages Limitation. Notwithstanding subsection (a) of this section, a person who violates any of the provisions of subdivisions (1) through (8) of subsection (a) is liable to the state for not less than two times the amount of damages that the state sustains because of the violation and the costs of a civil action brought to recover the damages, but no civil penalties, if the court finds all of the following:

            (1) The person committing the violation provided officials of the state who are responsible for investigating false claims violations with all information known to that person about the violation within thirty days after the date on which the person first obtained the information;

            (2) The person fully cooperated with any state investigation of the violation; and

            (3) At the time the person provided the state with information about the violation, a criminal prosecution, civil action or administrative proceeding had not commenced with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation.

§14-4-3. Attorney General investigations and prosecutions; powers of prosecuting authority.

            The Attorney General shall diligently investigate a violation under subsection (a) of section two of this article. If the Attorney General finds that a person has violated or is violating subsection (a) of section two, the Attorney General may bring a civil action under this section against that person.

§14-4-4. Civil actions by individuals as qui tam plaintiff and as private citizens.

            (a) A person may bring a civil action for a violation of this article for the person and for the state in the name of the state. The person bringing the action shall be referred to as the qui tam plaintiff. Once filed, the action may be dismissed only with the written consent of the court and the Attorney General, taking into account the best interest of the parties involved and the public purposes behind this article.

            (b) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Attorney General. The complaint shall also be filed in camera, shall remain under seal for at least sixty days and may not be served on the defendant until the court so orders. The state may elect to intervene and proceed with the action within sixty days after it receives both the complaint and the material evidence and the information. Any information or documents furnished by the relator to the Attorney General in connection with the initiation of a qui tam action or investigation under this subdivision is not a public record and is exempt from disclosure under chapter twenty-nine-b of this code.

            (c) The state may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under subsection (b). Any such motions may be supported by affidavits or other submissions in camera. The defendant may not be required to respond to any complaint filed under this section until after the complaint is unsealed and served upon the defendant pursuant to West Virginia Rules of Civil Procedure.

            (d) Before the expiration of the sixty-day period or any extensions obtained under subsection (c), the Attorney General shall review the action and shall issue findings that:

            (1) The cause has a reasonable basis in fact and that the Attorney General’s office shall proceed with the action, in which case the Attorney General shall intervene and conduct the action on behalf of the state;

            (2) The cause has a reasonable basis in fact but the Attorney General’s office declines to proceed with the action, in which case the Attorney General shall notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action; or

            (3) In any claims other than those for claims brought for fraud and abuse in the medicaid program, if the cause does not have a reasonable basis in fact, it may not proceed; provided, that any finding by the Attorney General that the cause is not meritorious is subject to an en banc review by the West Virginia Supreme Court of Appeals, which may approve or reverse such finding. If the person bringing the civil action elects to seek such review of the finding, he must file his request upon forms provided by the Court for that purpose within sixty days after receipt of the finding and deliver a copy of the form to the Attorney General. Within sixty days after receipt of a copy of the form, the Attorney General shall deliver to the Supreme Court of Appeals copies of the complaint and all evidence and information provided by the person bringing the civil action together with copies of all evidence developed by the Attorney General during his investigation. If, upon review, the West Virginia Supreme Court of Appeals finds that the cause has a reasonable basis in fact, then the cause may proceed under subdivision two of this subsection.

            (e) When a person brings a valid action under this section, no person other than the state may intervene or bring a related action based on the facts underlying the pending action.

            (f) In any action brought under the provisions of this section, the Attorney General, or any other person bringing the action, shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

§14-4-5. Rights of the parties to qui tam actions.

            (a) If the Attorney General proceeds with the action, it has the primary responsibility for prosecuting the action, and may not be bound by an act of the person bringing the action. That person may continue as a party to the action, subject to the limitations set forth in subsection (b).

            (b) (1) The Attorney General may seek to dismiss the action for good cause notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff has been notified by the Attorney General of the filing of the motion and the court has provided the qui tam plaintiff with an opportunity to oppose the motion and present evidence at a hearing.

            (A) Upon a hearing on the Attorney General’s motion to dismiss the action, the Court shall consider, and is authorized to grant, a proposal by the qui tam plaintiff to proceed with the action without the Attorney General’s participation.

            (B) Any award resulting from an action authorized by the Court pursuant to paragraph (A) of this subdivision shall be made pursuant to section six of this article.

            (2) The Attorney General may settle the action with the defendant notwithstanding the objections of the qui tam plaintiff if the court determines, after a hearing providing the qui tam plaintiff an opportunity to present evidence, that the proposed settlement is fair, adequate and reasonable under all of the circumstances.

            (3) Upon a showing by the Attorney General that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Attorney General’s prosecution of the case or would be repetitious, irrelevant or for purposes of harassment, the court may impose limitations on the person’s participation, such as:

            (A) Limiting the number of witnesses the person may call;

            (B) Limiting the length of the testimony of such witnesses;

            (C) Limiting the person’s cross-examination of witnesses; or

            (D) Otherwise limiting the participation by the person in the litigation.

            (4) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.

            (c) If the Attorney General elects not to proceed with the action, the person who initiated the action may conduct the action. If the Attorney General so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the state’s expense). When a person proceeds with the action the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Attorney General to intervene at a later date upon a showing of good cause.

            (d) Whether or not the Attorney General proceeds with the action, upon a showing by the state that certain actions of discovery by the person initiating the action would interfere with the state’s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.

            (e) Notwithstanding section four of this article, the state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil money penalty. If any alternate remedy is pursued in another proceeding, the person initiating the action has the same rights in that proceeding as the person would have had if the action had continued under section four of this article. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under section four of this article. A finding or conclusion is final if it has been finally determined on appeal to the appropriate court of the state, if all time for filing an appeal with respect to the finding or conclusion has expired or if the finding or conclusion is not subject to judicial review.

§14-4-6. Award to qui tam plaintiff.

            (a) (1) In any claims brought for fraud and abuse in the medicaid program, if the Attorney General proceeds with an action brought by a person under section four of this article, that person shall receive at least fifteen percent but not more than twenty-five percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or state auditor’s report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs prior to the attorney general’s intervention. All expenses, fees and costs shall be awarded against the defendant.

            (2) In any claims other than those for claims brought for fraud and abuse in the medicaid program, if the Attorney General proceeds with an action brought by a person under section four of this article, that person shall receive not more than twenty percent of the proceeds of the action or settlement of the claim, or $250,000 whichever is lesser, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or state auditor’s report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person shall be made from the proceeds. Any such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs prior to the attorney general’s intervention. All expenses, fees and costs shall be awarded against the defendant.

            (b)(1) If the Attorney General does not proceed with an action under this section, in any claims brought for fraud and abuse in the medicaid program, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent and not more than thirty percent of the proceeds of the action or settlement and shall be paid out of the proceeds. The person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred. All expenses, fees and costs shall be awarded against the defendant.

            (2) If the Attorney General does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount may not exceed more than thirty percent of the proceeds of the action or settlement and shall be paid out of the proceeds; nor, in any circumstance, shall the award exceed $1,000,000 absent a specific finding by the judge that such award is necessary and proper based upon specific factual circumstances unique to the action. The person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, which, at the court’s discretion may include reasonable attorneys’ fees and costs up to an amount not to exceed fifty percent of the plaintiff’s recovery. All expenses, fees and costs are the contractual obligation of the person bringing the action and are not the responsibility of the state; provided, the court shall award to the defendant its reasonable attorney’s fees and expenses against the person bringing the civil action if the defendant prevails in the civil action and the court finds that the claim of the person bringing the civil action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

            (c) Whether or not the Attorney General proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of section two upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action which the person would otherwise receive under subsection (a) or (b) of this section, taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from his or her role in the violation of section two of this article, that person shall be dismissed from the civil action and may not receive any share of the proceeds of the action. The dismissal does not prejudice the right of the state to continue the action.

            (d) Following any distributions under subsections (a) through (c), the agency injured by the submission of a false claim shall be awarded an amount not to exceed its compensatory damages. All remaining proceeds, including civil penalties awarded under this article, shall be deposited in accordance with section twelve of this article.

§14-4-7. Certain actions barred.

            (a) Except in any claim brought for fraud and abuse in the medicaid program, a court does not have jurisdiction over an action brought under section four of this article based on information discovered by a present or former employee of the state during the course of his employment unless that employee, first, in good faith, exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and unless the state failed to act on the information provided within a reasonable period of time.

            (b) A court does not have jurisdiction over an action brought under section four of this article against any department, authority, board, bureau, commission, or agency of the state, any political subdivision of the state, a member of the Legislature, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the state when the action was brought. For purposes of this section, ‘exempt official’ means the Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the state or any political subdivision of the state.

            (c) A court does not have jurisdiction over an action brought under section four of this article by an inmate incarcerated within a state or local correctional facility as defined in this Code.

            (d) A person may not bring an action under section four of this article which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the state is already a party.

            (e) (1) The court shall dismiss an action or claim under this article, unless opposed by the state, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:

            (A) In a criminal, civil or administrative hearing in which the state or its agent is a party;

            (B) In a West Virginia legislative or other state report, hearing, audit or investigation; or

            (C) From the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

            (2) For purposes of this section, ‘original source’ means an individual who either:

            (A) Prior to a public disclosure, has voluntarily disclosed to the state the information on which allegations or transactions in a claim are based, or

            (B) Who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the state before filing an action under this article.

§14-4-8. State not liable for certain expenses.

            The state is not liable for expenses which a person incurs in bringing an action under this article.

§14-4-9. Private action for retaliatory actions.

            (a) Any employee, contractor or agent who is discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of employment by the employer of the employee, contractor or agent because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action brought or to be brought under sections three or four of this article, or other efforts to stop one or more violations of this article, including investigation for, initiation of, testimony for, or assistance in the action, is entitled to all relief necessary to make the employee, contractor or agent whole. The relief shall include reinstatement with the same seniority status the employee, contractor or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney’s fees.

            (b) An employee, contractor or agent may bring an action in the appropriate court for the relief provided under this section. The action may not be brought under this section more than three years after the last act of the employer that is alleged to violate this section.

            (c) Any state employee who has suffered as a result of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action brought or to be brought under sections three or four of this article, or other efforts to stop one or more violations of this article may pursue a grievance under the West Virginia Public Employees Grievance Procedure, or through a local grievance process, if applicable; provided: any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process.

            (d) Nothing in this article shall disparage impair or limit any other right or legal action of an employee, contractor or agent.

§14-4-10. Limitation of actions; activities antedating this article; burden of proof.

            (a) A civil action under section three or four of this article may not be brought:

            (1) More than six years after the date on which the violation of section two of this article is committed, or

            (2) More than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the state charged with responsibility to act in the circumstances, but in no event more than ten years after the date on which the violation is committed, whichever occurs last.

            (b) If the state elects to intervene and proceed with an action brought under section four of this article, the state may file its own complaint or amend the complaint of a person who has brought an action under section four of this article to clarify or add detail to the claims in which the state is intervening and to add any additional claims with respect to which the state contends it is entitled to relief. For statute of limitations purposes, any such state pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the state arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.

            (c) Estoppel. Notwithstanding any other provision of law, a guilty verdict rendered in a criminal proceeding charging false statements or fraud, whether upon a verdict after trial or upon a plea of guilty or nolo contendre, shall estop the defendant from denying the essential elements of the offense in any action which involves the same transaction as in the criminal proceeding and which is brought under section three or four of this article.

            (d) An action under section three or four of this article may be brought in a circuit court of any county in which the defendant or any one of multiple defendants can be found, resides, or transacts business, or in any county in which any act prohibited by section two of this article occurred. The Attorney General or the person who brought the action shall prove all essential elements of the cause of action, including damages, by a preponderance of the evidence. 

            (e) A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the state.

§14-4-11. Remedies under other laws; liberality of construction.

            (a) The provisions of this article are not exclusive, and the remedies provided for in this article shall be in addition to any other remedies provided in any other law or available under common law.

            (b) This article shall be liberally construed and applied to promote the public interest.

§14-4-12. Proceeds. How distributed.

            Following the satisfaction of the provisions of subsection (d) of section six of this article, for the fiscal year beginning July 1, 2014, all proceeds the state shall receive from successful actions brought under the provisions of this article shall be deposited as follows: (1) ten percent into the account of the Office of the Attorney General for operation of the Consumer Protection Division of that Office; (2) ten percent into the account of the Office of the Attorney General for operations in that office to carry out the mandates of this article; (3) ten percent into the Education Improvement Fund for appropriation by the Legislature to the PROMISE Scholarship Fund created in section seven, article seven, chapter eighteen-c of this code; (4) ten percent into the account of the School Building Authority School Construction Fund created pursuant to section six, article nine-d, chapter eighteen of this code; (5) ten percent into the Feed to Achieve initiative nonprofit foundation of the State Board of Education created pursuant to section four, article five-d, chapter eighteen of this code, to be spent in accordance with the provisions of said article; (6) ten percent into the State Road Fund in the State Treasury and expended by the Commissioner of Highways for design, maintenance and construction of roads in the state highway system; (7) ten percent into a fund to enable the Bureau of Senior Service to carry out programs pursuant to section nine, article five-p, chapter sixteen of this code; (8) ten percent into a fund to be established to enable the Department of Health and Human Resources to build substance abuse centers; (9) ten percent into a fund to be established for a fund to provide mental health services to veterans under the direction of the Department of Veteran’s Affairs; and (10) ten percent into the Teachers’ Retirement System created pursuant to section one, article seven-a, chapter eighteen of this code.

            On the adoption of 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. 154), and there were--yeas 45, nays 51, absent and not voting 4, with the yeas and absent and not voting being as follows:

            Yeas: Ambler, Anderson, Andes, Armstead, Arvon, Ashley, Azinger, Border, Butler, Cadle, Canterbury, Cooper, Cowles, Ellem, Ellington, Espinosa, A. Evans, D. Evans, Faircloth, Ferns, Folk, Frich, Gearheart, Hamilton, Hamrick, Householder, Howell, Kinsey, Kump, Lane, McCuskey, Miller, E. Nelson, O’Neal, Overington, Pasdon, Romine, Rowan, Shott, R. Smith, Sobonya, Storch, Sumner, Walters and Westfall.

Absent and Not Voting: Barill, Ireland, J. Nelson and Raines.

             So, a majority of the members present and voting having not voted in the affirmative, the amendment was not adopted.

            The bill was then ordered to engrossment and third reading.

            Com. Sub. for H. B. 4245, Relating to anticipated retirement dates of certain health care professionals; on second reading, coming up in regular order, was read a second time.

            On motion of Delegate Fleischauer, the bill was amended on page two, section twenty, line four, after the comma by inserting the words “age, gender, percentage of time working direct services, percentage of time working administration and county of practice”.

            The bill was then ordered to engrossment and third reading.

            H. B. 4256, Amending the annual salary schedule for members of the state police; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

First ReadingThe following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

            Com. Sub. for H. B. 2446, Creating the crime of soliciting a minor,

            Com. Sub. for H. B. 2606, Permitting the State Rail Authority to set the salary of the executive director,

            Com. Sub. for H. B. 2803, Requiring electric utilities to implement integrated resource plans,

            H. B. 2981, Providing that historical reenactors are not violating the provision prohibiting unlawful military organizations,

            Com. Sub. for H. B. 3156, Granting a labor organization a privilege from being compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee,

            Com. Sub. for H. B. 4004, Relating to criminal offenses for child abuse,

            Com. Sub. for H. B. 4005, Relating to criminal offenses for child neglect,

            Com. Sub. for H. B. 4012, Relating to the Revised Uniform Law on Notarial Acts,

            Com. Sub. for H. B. 4039, Authorizing miscellaneous boards and agencies to promulgate legislative rules,

            Com. Sub. for H. B. 4141, Relating to licenses to sell paraphernalia for use with controlled substances,

            Com. Sub. for H. B. 4156, Creating the Safe and Efficient Parkways Act,

            Com. Sub. for H. B. 4168, Requiring materials, supplies, equipment and other items purchased by the state and its agencies to be made in the United States,

            Com. Sub. for H. B. 4183, Supplementing, amending, decreasing, and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways,

            Com. Sub. for H. B. 4184, Relating to the West Virginia Tourism Development Act,

            Com. Sub. for H. B. 4204, Relating to the nonrenewal of property insurance policies as a result of certain claims,

            Com. Sub. for H. B. 4210, Juvenile sentencing reform,

            Com. Sub. for H. B. 4221, Permitting teachers under the State Teachers Retirement System to teach college level courses without loss of benefits,

            Com. Sub. for H. B. 4225, Providing for emergency contact information on driver’s license records with the Division of Motor Vehicles,

            H. B. 4226, Prohibiting damage to property of railroads, public utilities and certain production storage and distribution facilities,

            Com. Sub. for H. B. 4228, Repealing or removing certain portions of education-related statutes that have expired,

            Com. Sub. for H. B. 4242, Increasing gross weight limitations on certain roads in Brooke County,

            Com. Sub. for H. B. 4254, Providing that certain state employees may be granted a leave of absence with pay during a declared state of emergency,

            Com. Sub. for H. B. 4267, Legalizing and regulating the sale and use of fireworks and creating the West Virginia Veterans Program Fund,

            Com. Sub. for H. B. 4270, Relating to salaries of service employees of the state camp and conference center known as Cedar Lakes Conference Center,

            Com. Sub. for H. B. 4305, Relating to the requirements of members of a building commission board be from the same political party,

            Com. Sub. for H. B. 4307, Relating to school celebrations, recognition programs and events,

            H. B. 4310, Making gun permits and applications confidential except for law enforcement purposes,

            Com. Sub. for H. B. 4316, Creating the student data accessability, transparency and accountability act,

            And,

            Com. Sub. for H. B. 4327, Prohibiting health care practitioners from prescribing or administering drugs other than in a good faith, therapeutic manner.

            Com. Sub. for H. B. 4333, Relating to the redirection of certain Lottery revenues to the State Excess Lottery Revenue Fund; on first reading, coming up in regular order, was, on motion of Delegate White, recommitted to the Committee on Finance.

            The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

            Com. Sub. for H. B. 4335, Relating to a child’s right to nurse,

            H. B. 4346, Establishing separate standards of performance for carbon dioxide emissions,

            Com. Sub. for H. B. 4354, Requiring the reporting and publication of all compensation, including contingent compensation, paid to lobbyists,

            Com. Sub. for H. B. 4360, Relating to consumer credit protection,

            Com. Sub. for H. B. 4375, West Virginia Voluntary Employee Retirement Accounts Program,

            Com. Sub. for H. B. 4411, Allowing the disposal of drill cuttings and associated drilling waste generated from well sites in commercial solid waste facilities,

            Com. Sub. for H. B. 4416, Exempting certified professional estimator services from consumers sales tax,

            Com. Sub. for H. B. 4432, Adopting Principle Based Reserving as the method by which life insurance company reserves are calculated,

            Com. Sub. for H. B. 4435, Adding West Virginia School of Osteopathic Medicine to the list of state institutions of higher education that are permitted to invest certain moneys with its foundation,

            Com. Sub. for H. B. 4449, Including proximity detection systems and cameras used on continuous mining machines and underground haulage equipment for tax credit purposes,

            H. B. 4463, All relating to the disclosure of information on campaign contributions and spending,

            Com. Sub. for H. B. 4480, Relating to investment of the Acid Mine Drainage Fund,

            Com. Sub. for H. B. 4492, Relating to investment of moneys by the West Virginia Investment Management Board,

            Com. Sub. for H. B. 4496, Providing for the allocation of matching funds from future moneys deposited into the West Virginia Research Trust Fund,

            H. B. 4500, Relating requirements for business registration,

            Com. Sub. for H. B. 4501, Providing that law-enforcement officers employed as school security be allowed to carry firearms on school property under certain conditions,

            Com. Sub. for H. B. 4510, Establishing a bill of rights for children in foster care,

            Com. Sub. for H. B. 4537, West Virginia CARES Act,

            Com. Sub. for H. B. 4538, Relating to the Board of Dentistry,

            Com. Sub. for H. B. 4551, Relating to methane protections in underground mines,

            Com. Sub. for H. B. 4552, Relating to the court of claims,

            Com. Sub. for H. B. 4555, Requiring county boards of education to provide released time for professional educators and service personnel when serving in an elected municipal or county office,

            H. B. 4588, Protecting unborn children who are capable of experiencing pain by prohibiting abortion after twenty weeks,

            H. B. 4601, Relating to fiscal management and regulation of publicly-owned utilities,

            Com. Sub. for H. B. 4608, Establishing and requiring a uniform definition of dyslexia,

            H. B. 4619, Authorizing innovation school districts,

            And,

            H. B. 4620, Relating to protection of consumers from price gouging and unfair trade practices.

Leaves of Absence

            At the request of Delegate White, and by unanimous consent, leaves of absence for the day were granted Delegates Barill, Ireland, Raines and J. Nelson.

Miscellaneous Business

            Delegate Howell asked and obtained unanimous consent that the remarks of all members regarding the Com. Sub. for H. B. 4490, Attorney General Ethics and Accountability Act, be printed in the Appendix to the Journal.

            Delegate Hamrick asked and obtained unanimous consent that the remarks of all members regarding Com. Sub. for H. B. 4493, Repealing section of code that determines venue for certain suits and actions in claims due and against the state, be printed in the Appendix to the Journal.

            At 6:09 p.m., on motion of Delegate White, the House of Delegates recessed until 7:00 p.m., and reconvened at that time.

            At the request of Delegate White, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.

Committee Reports

            Delegate Boggs, Chair of the Committee on Finance, submitted the following report, which was received:

            Your Committee on Finance has given further consideration to:

            H. B. 4286, Captive Cervid Farming Act,

            And,

            Com. Sub. for H. B. 4333, Relating to the redirection of certain Lottery revenues to the State Excess Lottery Revenue Fund.

            And reports the same back, with amendment, with the recommendation that they each do pass, as amended.

            At 7:24 p.m., the House of Delegates adjourned until 11:00 a.m., Tuesday, February 25, 2014.

This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature **