(b)(1) Demand deposit accounts shall consist of receipt and disbursement accounts. Receipt accounts are accounts in which are deposited moneys belonging to or due the State of West Virginia or any official, department, board, commission or agency of the state.
(2) Disbursement accounts are accounts from which are paid moneys due from the State of West Virginia or any official, department, board, commission, political subdivision or agency of the state to any political subdivision, person, firm or corporation, except moneys paid from investment accounts.
(3) Investment accounts are accounts established by the West Virginia Investment Management Board, the West Virginia Board of Treasury Investments or the State Treasurer for the buying and selling of securities for investment purposes.
(c) The State Treasurer shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, concerning depositories for receipt accounts prescribing the selection criteria, procedures, compensation and any other contractual terms it considers to be in the best interests of the state giving due consideration to: (1) The activity of the various accounts maintained in the depositories; (2) the reasonable value of the banking services rendered or to be rendered the state by the depositories; and (3) the value and importance of the deposits to the economy of the communities and the various areas of the state affected by the deposits.
(d) The State Treasurer shall select depositories for disbursement accounts through competitive bidding by eligible banks in this state. If none of the eligible banks in this state are able to provide the needed services, then the State Treasurer may include eligible banks outside this state in the competitive bidding process. The State Treasurer shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, prescribing the procedures and criteria for the bidding and selection. The State Treasurer shall, in the invitations for bids, specify the approximate amounts of deposits, the duration of contracts to be awarded and any other contractual terms the State Treasurer considers to be in the best interests of the state, consistent with obtaining the most efficient service at the lowest cost.
The amount of money needed for current operation purposes of the state government, as determined by the State Treasurer, shall be maintained at all times in the State Treasury, in cash, in short term investments not to exceed five days or in disbursement accounts with financial institutions designated as depositories in accordance with the provisions of this section. No state officer or employee shall make or cause to be made any deposits of state funds in financial institutions which have not been designated as depositories.
(e) Except as otherwise provided in this code, only banks and state and federal savings and loan associations designated by the State Treasurer as depositories may accept deposits of state funds. Only the Legislature and the State Treasurer may determine whether funds are state funds and only the State Treasurer may approve the opening of an account or processing of a transaction with a financial institution.
(f) Boards, commissions and spending units with authority pursuant to this code to deposit moneys in a financial institution without approval of the State Treasurer shall retain that authority and are not required to have the State Treasurer designate a financial institution as a depository: Provided, That boards, commissions and spending units with moneys deposited in financial institutions not approved for that purpose by the State Treasurer shall submit a report on those moneys annually to the Legislative Auditor and the State Treasurer.
(g) The provisions of this section shall not apply to the proceeds from the sale of general obligation bonds or bonds issued by the School Building Authority, the Parkways, Economic Development and Tourism Authority, the Housing Development Fund, the Economic Development Authority, the Infrastructure and Jobs Development Council, the Water Development Authority or the Hospital Finance Authority.
(h) As used in this chapter, "spending unit" means a department, agency, board, commission or institution of state government for which an appropriation is requested, or to which an appropriation is made by the Legislature.
owner thereof when liability under the bond which they are pledged to secure has terminated. The treasurer may permit the deposit under proper receipt of the securities with one or more banking institutions within or outside the State of West Virginia and may contract with any institution for safekeeping and exchange of any collateral securities and may prescribe the rules for handling and protecting the collateral securities.
(b) A banking institution is not required to provide a bond or security in lieu of bond if the deposits accepted are placed in certificates of deposit meeting the following requirements: (1) The funds are invested through a designated state depository selected by the treasurer; (2) the selected depository arranges for the deposit of the funds in certificates of deposit in one or more banks or savings and loan associations wherever located in the United States, for the account of the state; (3) the full amount of principal and accrued interest of each certificate of deposit is insured by the Federal Deposit Insurance Corporation; (4) the selected depository acts as custodian for the state with respect to such certificates of deposit issued for the state's account; and (5) at the same time that the state's funds are deposited and the certificates of deposit are issued, the selected depository receives an amount of deposits from customers of other financial institutions wherever located in the United States equal to or greater than the amount of the funds invested by the state through the selected depository.
(c) A banking institution is not required to provide a bond or security in lieu of bond pursuant to this section if the deposits accepted are placed in a designated state depository that is selected and authorized by the state to arrange for the redeposit of the funds through a deposit placement program that meets the following conditions:
(1) On or after the date that the funds are received the selected depository: (i) Arranges for the redeposit of the funds into deposit accounts in one or more federally insured banks or savings and loan associations that are located in the United States; and (ii) serves as custodian for the state with respect to the funds redeposited into such accounts.
(2) State funds deposited in a selected depository in accordance with this section and held at the close of business in the selected depository in excess of the amount insured by the Federal Deposit Insurance Corporation shall be secured in accordance with section two, article six, chapter seven of this code.
(3) The full amount of the funds of the state redeposited by the selected depository into deposit accounts in banks or savings and loan associations pursuant to this section (plus accrued interest, if any) shall be insured by the Federal Deposit Insurance Corporation.
(4) On the same date that the funds of the state are redeposited pursuant to this section, the selected depository receives an amount of deposits from customers of other financial institutions through the deposit placement program that are equal to the amount of the state funds redeposited by the selected depository.
Only the treasurer may enter into contracts or agreements with financial institutions for banking goods or services required by spending units. Boards, commissions and spending units with authority pursuant to this code to enter into contracts or agreements with financial institution for banking goods and services without approval of the state treasurer shall retain that authority and are not required to have the treasurer designate a financial institution as a depository. The provisions of this section shall not apply to trust and investment accounts and activities for general obligation bonds or bonds issued by the school building authority, the parkways, economic development and tourism authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the water development authority or the hospital finance authority. A state spending unit requiring banking goods or services shall submit a request for the goods or services to the treasurer. If the treasurer enters into a contract or agreement for the required goods or services, spending units using the contract or agreement shall pay either the vendor or the treasurer for the goods or services used.
The treasurer is also authorized to enter into any depositors' agreements for the purpose of reorganizing or rehabilitating any depository in which state funds are deposited, and for the purpose of transferring the assets, in whole or in part, of any depository to any other lawful depository when, in the judgment of the treasurer, the interests of the state are promoted thereby, and upon condition that no right of the state to preferred payment is waived.
All the statements and records shall be reconciled monthly and the reconciled reports shall be kept in the treasurer's office. The reconciled records for each month shall be kept in the treasurer's office for a period of five years.
(b) Spending units with authority to retain interest or earnings on a fund or account may submit requests to the State Treasurer to transfer moneys to a specific investment pool of the Investment Management Board or the Board of Treasury Investments and retain any interest or earnings on the money invested. The general revenue fund shall receive all interest or other earnings on money invested that are not designated for a specific fund or account.
(c) Whenever the funds in the Treasury exceed the amount for which depositories within the state have qualified, or the depositories within the state which have qualified are unwilling to receive larger deposits, the State Treasurer may designate depositories outside the state, disbursement accounts being bid for in the same manner as required by depositories within the state, and when depositories outside the state have qualified by giving the bond prescribed in section four of this article, the State Treasurer shall deposit funds in the same manner as funds are deposited in depositories within the state under this article.
(d) The State Treasurer may transfer funds to financial institutions outside the state to meet obligations to paying agents outside the state if the financial institution meets the same collateral requirements as set forth in this article.
(b) The state treasurer may exercise any and all powers reasonably necessary or appropriate to carry out and effectuate the purposes of this section.
(c) Investments shall be made in accordance with the provisions of the "Uniform Prudent Investor Act" codified as article six-c, chapter forty-four of this code.
(d) The state treasurer is authorized to invest the funds in repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities.
(e) The state treasurer shall prepare monthly a report of the investments he or she administers. A copy of each report shall be furnished to the president of the Senate, speaker of the House, legislative auditor, council of finance and administration, and upon request to any legislative committee, banking institution, state or federal savings and loan association in this state, and any member of the news media. The report shall also be kept available for inspection by the public.
(b) In administering the CMIA, the State Treasurer is authorized to do all things reasonably necessary, including without limitation, entering into agreements with, negotiating settlements with, refunding any interest due and satisfying any liability to the United States Treasury in accordance with the CMIA.
(c) Periodically, the State Treasurer shall transfer to the "Federal Cash Management Fund", which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the Treasurer estimates is needed to make refunds in accordance with the CMIA. After each annual settlement with the United States Treasury, the State Treasurer shall transfer to the State General Revenue Fund any moneys remaining in the Federal Cash Management Interest Fund for the period just settled.
(d) The State Treasurer shall also transfer periodically to the "Federal Cash Management - Administration Fund," which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the Treasurer determines is needed to pay for the costs of administering the CMIA. The State Treasurer may pay the costs he or she incurs in administering the CMIA from the Federal Cash Management-Administration Fund.
(e) All state spending units shall cooperate fully with the State Treasurer in accumulating all the necessary data elements to fully comply with the CMIA.
(f) The State Treasurer shall send quarterly reports on the activities involving the CMIA to the Governor, Auditor, Secretary of Revenue and Joint Committee on Government and Finance.
(b) In administering the CMIA, the State Treasurer is authorized to do all things reasonably necessary, including without limitation, entering into agreements with, negotiating settlements with, refunding any interest due and satisfying any liability to the United States Treasury in accordance with the CMIA.
(c) Periodically the State Treasurer shall transfer to the Federal Cash Management Interest Fund, which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the State Treasurer estimates is needed to make refunds in accordance with the CMIA. After each annual settlement with the United States Treasury, the State Treasurer shall transfer to the State General Revenue Fund any moneys remaining in the Federal Cash Management Interest Fund for the period just settled.
(d) The State Treasurer shall also transfer periodically to the Federal Cash Management - Administration Fund, which is hereby authorized and continued, earnings on the State General Revenue Fund in an amount the State Treasurer determines is needed to pay for the costs of administering the CMIA. The State Treasurer may pay the costs he or she incurs in administering the CMIA from the Federal Cash Management - Administration Fund.
(e) All state spending units shall cooperate fully with the State Treasurer in accumulating all the necessary data elements to fully comply with the CMIA.
(f) The State Treasurer shall send quarterly reports on the activities involving the CMIA to the Governor, State Auditor, Secretary of Revenue and Joint Committee on Government and Finance.
(b) A governing board, through its chief financial officer may enter into agreements, approved as to form by the State Treasurer, for the investment by its foundation of certain funds subject to their administration. Any interest or earnings on the moneys invested is retained by the investing university.
(c) Moneys of a university that may be invested with its foundation pursuant to this section are those subject to the administrative control of the university that are collected under an act of the Legislature for specific purposes and do not include any funds made available to the university from the state General Revenue Fund or the funds established in sections eighteen or eighteen-a, article twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section may be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University and West Virginia University each, respectively, may have invested with its foundation at any time not more than the greater of:
(1) $18 million for Marshall University and $25 million for West Virginia University; or
(2) Sixty-five percent of its unrestricted net assets as presented in the statement of net assets for the fiscal year end audited financial reports.
(e) Investments by foundations that are authorized under this section shall be made in accordance with and subject to the provisions of the Uniform Prudent Investor Act codified as article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing board shall establish investment policies in accordance with the Uniform Prudent Investor Act for those moneys invested with its foundation. The governing board shall review, establish and modify, if necessary, the investment objectives as incorporated in its investment policies so as to provide for the financial security of the moneys invested with its foundation. The governing boards shall give consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by December 31 to the Governor and to the Joint Committee on Government and Finance on the performance of investments managed by its foundation pursuant to this section.
(g) The authority of a governing board to invest moneys with its foundation pursuant to this section expires on July 1, 2011.
(h) The amendments to this section in the second extraordinary session of the Legislature in 2010 shall apply retroactively so that the authority granted by this section shall be construed as if that authority did not expire on July 1, 2010.
(b) The Investment Management Board may pay for the investigation and pursuit of claims against third parties for the investment losses incurred during the period beginning on the first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of August, one thousand nine hundred eighty-nine. The payment may be in the form of a state warrant.
(c) If payment is made by a state warrant, the West Virginia Board of Treasury Investments, at the request of the State Treasurer, may establish within the consolidated fund an investment pool which will generate sufficient income to pay for all banking services provided to the state and to pay for the investigation and pursuit of the prior investment loss claims. All income earned by the investment pool shall be paid into a special account of the State Treasurer known as the banking services account to pay for all banking services and goods and services ancillary to the banking services provided to the state, for the investigation and pursuit of the prior investment loss claims, and for amortization of the balance in the investment imbalance fund.
(b) A governing board, through its chief financial officer may enter into agreements, approved as to form by the State Treasurer, for the investment by its foundation of certain funds subject to their administration. Any interest or earnings on the moneys invested is retained by the investing university.
(c) Moneys of a university that may be invested with its foundation pursuant to this section are those subject to the administrative control of the university that are collected under an act of the Legislature for specific purposes and do not include any funds made available to the university from the state General Revenue Fund or the funds established in sections eighteen or eighteen-a, article twenty-two, chapter twenty-nine of this code. Moneys permitted to be invested under this section may be aggregated in an investment fund for investment purposes.
(d) Of the moneys authorized for investment by this section, Marshall University and West Virginia University each, respectively, may have invested with its foundation at any time not more than the greater of:
(1) $18 million for Marshall University and $25 million for West Virginia University; or
(2) Sixty-five percent of its unrestricted net assets as presented in the statement of net assets for the fiscal year end audited financial reports.
(3) Notwithstanding subdivisions (1) and (2) of this subsection, with the approval of the Higher Education Policy Commission, Marshall University may increase the amount invested to $30 million and West Virginia University may increase the amount invested to $40 million.
(e) Investments by foundations that are authorized under this section shall be made in accordance with and subject to the provisions of the Uniform Prudent Investor Act codified as article six-c, chapter forty-four of this code. As part of its fiduciary responsibilities, each governing board shall establish investment policies in accordance with the Uniform Prudent Investor Act for those moneys invested with its foundation. The governing board shall review, establish and modify, if necessary, the investment objectives as incorporated in its investment policies so as to provide for the financial security of the moneys invested with its foundation. The governing boards shall give consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(f) A governing board shall report annually by December 31 to the Governor and to the Joint Committee on Government and Finance on the performance of investments managed by its foundation pursuant to this section.
(g) The amendments to this section in the second
extraordinary session of the Legislature in 2010 shall apply
retroactively so that the authority granted by this section shall
be construed as if that authority did not expire on July 1, 2010.
(b) All moneys received by the state from appropriations made by the Congress of the United States shall be recorded in special fund accounts, in the State Treasury apart from the general revenues of the state, and shall be expended in accordance with the provisions of article eleven, chapter four of this code. All moneys, other than federal funds, defined in section two, article eleven, chapter four of this code, shall be credited to the state fund and treated by the State Auditor and State Treasurer as part of the general revenue of the state except the following funds which shall be recorded in separate accounts:
(1) All funds excluded by the provisions of section six, article eleven, chapter four of this code;
(2) All funds derived from the sale of farm and dairy products from farms operated by any spending unit of the state;
(3) All endowment funds, bequests, donations, executive emergency funds and death and disability funds;
(4) All fees and funds collected at state educational institutions for student activities;
(5) All funds derived from collections from dormitories, boardinghouses, cafeterias and road camps;
(6) All moneys received from counties by institutions for the deaf and blind on account of clothing for indigent pupils;
(7) All insurance collected on account of losses by fire and refunds;
(8) All funds derived from bookstores and sales of blank paper and stationery, and collections by the chief inspector of public offices;
(9) All moneys collected and belonging to the capitol building fund, state road fund, state road sinking funds, general school fund, school fund, state fund (moneys belonging to counties, districts and municipalities), state interest and sinking funds, state compensation funds, the fund maintained by the Public Service Commission for the investigation and supervision of applications and all fees, money, interest or funds arising from the sales of all permits and licenses to hunt, trap, fish or otherwise hold or capture fish and wildlife resources and money reimbursed and granted by the federal government for fish and wildlife conservation; and
(10) All moneys collected or received under any act of the Legislature providing that funds collected or received under the act shall be used for specific purposes.
(c) All moneys, except as provided in subdivisions (1) through (9), inclusive, subsection (b) of this section, shall be paid into the State Treasury in the same manner as collections not excepted and recorded in separate accounts for receipt and expenditure for the purposes for which the moneys are authorized to be collected by law: Provided, That amounts collected pursuant to subdivision (10), subsection (b) of this section, which are found, from time to time, to exceed funds needed for the purposes set forth in general law may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The gross amount collected in all cases shall be paid into the State Treasury. Commissions, costs and expenses, including, without limitation, amounts charged for use of bank, charge, credit or debit cards, incurred in the collection process shall be paid from the gross amount collected in the same manner as other payments are made from the State Treasury.
(d) The State Treasurer may establish an imprest fund or funds in the office of any state spending unit upon receipt of a proper application. To implement this authority, the State Treasurer shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. The State Treasurer or his or her designee shall annually audit all imprest funds and prepare a list of the funds showing the location and amount as of fiscal year end, retaining the list as a permanent record of the State Treasurer until the Legislative Auditor has completed an audit of the imprest funds of all agencies and institutions involved.
(e) The State Treasurer may develop and implement a centralized receipts processing center. The State Treasurer may request the transfer of equipment and personnel from appropriate state agencies to the centralized receipts processing center in order to implement the provisions of this section: Provided, That the Governor or appropriate constitutional officer has authority to authorize the transfer of equipment or personnel to the centralized receipts processing center from the respective agency.
Notwithstanding any provision of this code to the contrary, including provisions stating funds collected are not state funds and provisions authorizing a spending unit to have one or more accounts outside the Treasury, a spending unit shall comply with the State Treasurer's procedures for the receipt and disbursement of moneys not due the state and obtain written authorization from the State Treasurer before depositing any moneys in an account outside the Treasury. Upon the State Treasurer's written revocation of the authorization, the spending unit shall deposit funds deposited in an account outside the Treasury into the Treasury in the manner and in the depository specified by the State Treasurer. The State Treasurer is the final determining authority as to whether these funds are funds due or not due the state pursuant to section two of this article. The State Treasurer shall on a quarterly basis provide the Legislative Auditor with a report of all accounts authorized under this section.
(b) If a check is not presented for payment within six months after it is drawn, it is the duty of the treasurer to credit it to the depository on which it was drawn, to credit the "Treasurer's Stale Check Fund," which is hereby created in the state treasury, and immediately notify the auditor to make corresponding entries on the auditor's books. If the state treasurer determines any funds deposited in the stale check account are federal funds, the state treasurer shall notify the spending unit authorizing the payment. Within six months following issuance of the notice, the spending unit shall inform the state treasurer of the amount of federal funds included in the check, the account from which the federal funds were disbursed, and the current fiscal year account to which the federal funds are to be transferred. After receiving the information, the state treasurer shall transfer the amount of federal funds specified as a reimbursement to the current fiscal year account specified to receive federal funds by the spending unit. For a period of up to six months, the state treasurer shall endeavor to pay the money in the stale check account to the payee. The treasurer shall credit the money that has been in the stale check account for six months, or for a shorter period as determined by the treasurer, to the unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code, and shall immediately notify the auditor to make corresponding entries on the auditor's books.
(c) No state depository may pay a check unless it is presented within six months after it is drawn and every check shall bear upon its face the words "Void, unless presented for payment within six months."
(d) Any information or records maintained by the treasurer concerning any check not presented for payment within six months of the date of issuance is confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and is disclosable only to the state spending unit authorizing the check, or to the payee, his or her personal representative, next of kin or attorney-at-law.
(e) All claims required by law to be allowed by any court, and payable out of the state treasury, shall have the seal of the court allowing or authorizing the payment of the claim affixed by the clerk of the court to his or her certificate of its allowance. No claim may be audited and paid by the auditor unless the seal of the court is thereto attached as aforesaid. No tax or fee may be charged by the clerk for affixing his or her seal to the certificate, referred to in this section. The treasurer shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the procedure for such payments from the treasury.
Any officer or employee of the state of West Virginia may authorize the direct deposit of his or her net wages to his or her account in any bank or other financial institution by electronic funds transfer. Direct deposit authorizations shall comply with the requirements of section one-a of this article. Upon approval of an authorization, the auditor shall issue the warrant in the manner specified on the authorization and forward the warrant to the treasurer for further disposition to the designated bank or other financial institution on or before the day or days the officer or employee is due his or her net wages. Direct deposit authorizations may be revoked at any time thirty days prior to the date on which the direct deposit is regularly made and on a form to be provided by the auditor: Provided, That on and after the first day of July, two thousand two, at the option of the auditor, all wages shall be deposited directly into the employees' account at any bank or financial institution designated by the employee via electronic funds transfer or, if the employee does not have a bank account, through the West Virginia check card program in accordance with section four, article three-a of this chapter.
The auditor may administer oaths in relation to any claim presented to him in his official character. He may have and use an official seal, which may be affixed to any official certificate or other paper intended to be used outside of this state.
Repealed.
Acts, 1941 Reg. Sess., Ch. 20.
(b) The Auditor:
(1) Shall accept an electronic requisition from Marshall University and West Virginia University in an unaltered format approved by the Auditor;
(2) May accept or require an electronic requisition from any entity other than Marshall University or West Virginia University at his or her discretion in an unaltered format approved by the Auditor; and
(3) May not issue a warrant for an amount that exceeds the appropriation or for an expired appropriation.
(b) Except as provided in subsection (c) of this section, a requisition for appropriation for new buildings and substantial betterments shall be accompanied by the architect's estimate that the amount named in the requisition is needed for immediate use.
(c) The provisions of subsection (b) of this section do not apply to a requisition from:
(1) An institution from which the Auditor is required to accept an electronic requisition. Such an institution is not required to submit the documentation required in subsection (b) of this section, but shall maintain the documentation for inspection at the Auditor's request; and
(2) The Commissioner of Corrections.
(d) The Auditor may issue a warrant to pay money out of the State Treasury only if the money is needed for the present use.
(1) Receives four dollars per day for each day necessarily employed as such, including time spent traveling to and returning from the meeting location;
(2) Receives the actual and necessary expenses incurred in the discharge of his or her duties; and
(3) Does not receive mileage reimbursement.
(b) Prior to receiving compensation or expense reimbursement:
(1) The member prepares in duplicate an itemized statement specifying the number of days spent and the expenses incurred;
(2) The member certifies the accuracy of the itemized statement;
(3) The member delivers the original to the secretary or clerk of the board or commission for preservation in its office; and
(4) The secretary or clerk immediately forwards the duplicate to the Auditor.
(c) If any member willfully makes a greater charge of services or expenses than truth justified, he or she is guilty of embezzlement and punished accordingly.
(d) The governing board of Marshall University and West Virginia University each satisfies the requirements of subsection (b) of this section by maintaining the member's original itemized, certified statement and submitting an electronic requisition to the Auditor.
No requisition shall be made upon the auditor for any money appropriated for the judicial system of the state, unless prior approval shall have been obtained from the supreme court of appeals or its administrative director authorizing such requisition.
Every board or officer authorized by law to issue requisitions upon the auditor for payment of money out of the state treasury, shall, before any such money is paid out of the state treasury, certify to the auditor that the money for which such requisition is made is needed for present use for the purposes for which it was appropriated; and the auditor shall not issue his warrant to pay any money out of the state treasury unless he is satisfied that the same is needed for present use for such purposes.
of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section ten-a of this article or the rules promulgated pursuant to that section. Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than five years, or fined no more than five thousand dollars, or both fined and imprisoned.
(1) A penalty fee to be assessed against spending units of state government who submit claims for payment of goods and services when those claims are authorized to be paid by use of a state purchasing card and the spending unit has failed to utilize the state purchasing card; and
(2) A transaction fee to be assessed against spending units of state government for every transaction received, electronically or otherwise, by the auditor from the centralized accounting system.
(b) All fees collected under this section shall be deposited into the "Technology Support and Acquisition Fund" which is hereby created in the state treasury to be administered by the auditor. The auditor and treasurer shall use moneys deposited in the fund to maintain and develop the state purchasing card program, support the fiscal operations of the state, including the state centralized accounting system, and to acquire and improve the technology required to support these functions: Provided, That expenditures from the fund are authorized from collections and are to be made only in accordance with an appropriation by the Legislature and in accordance with the provision of article three of this chapter and upon fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, however, That for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-eight, expenditures from the fund may be made from collections: Provided further, That the Legislature is exempt from any fees imposed under this section.
(b) Within three days of receiving rebate moneys resulting from state spending unit purchasing card purchases, the Auditor shall transfer fifteen and one-half percent of such rebate moneys to the Purchasing Improvement Fund created pursuant to section fifty-eight, article three, chapter five-a of this code.
(c) Within three days of receiving rebate moneys resulting from state spending unit purchasing card purchases, the Auditor shall transfer fifteen and one-half percent of such rebate moneys to the Hatfield-McCoy Regional Recreation Authority.
(1) The Auditor shall serve as chairperson of the committee and shall appoint:
(A) Four members from the State College System of West Virginia and the University System of West Virginia;
(B) One member from the Department of Health and Human Resources; and
(C) One member from the Division of Highways and two additional members at large from any state agency.
(2) The Secretary of the Department of Administration shall appoint:
(A) One member from the Office of Technology;
(B) One member from the Financial Accounting and Reporting Section; and
(C) One member from the Purchasing Division;
(3) The Secretary of the Department of Revenue shall appoint one member from the Department of Revenue; and
(4) The State Treasurer shall appoint one member from that office.
(b) Committee members shall be appointed for a term of one year, commencing on July 1, 1998. Committee members shall receive reimbursement for expenses actually incurred in the performance of their duties on the committee.
The state officer or employee acting as head of each spending unit is responsible for the completion and timely submission of the receiving reports, which shall be prepared at the original point of receipt of the commodities at the spending unit by employees designated by the head of the spending unit to receive the commodities and prepare the receiving reports. The receiving reports shall include, but not be limited to, the following information: Vendor name, description and quantity of commodities received, date commodities are received, whether commodities are acceptable for payment, and a signed acknowledgment of receipt by the employees receiving the commodities. The receiving reports required by this section shall be prepared within twenty-four hours of the receipt of the commodities.
The head of a spending unit may not issue a requisition on the state auditor in payment of a claim for commodities received by the spending unit unless the receiving report required by this section accompanies the claim for payment. The spending unit is liable for a debt improperly incurred or for a payment improperly made if the receiving report was not filed with the state auditor as set forth in this section.
The state auditor shall propose rules for legislative approval in accordance with provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this section.
No provision of this section shall apply to the West Virginia Legislature.
(b) Payment for dues or membership in annual or other voluntary organizations shall be made from the proper item or appropriation after an itemized schedule of the organizations, together with the amount of the dues or membership, has been submitted to the budget director and approved by the governor.
(c) The secretary of the department of administration, the higher education policy commission or a higher education governing board may authorize the payment of traveling expenses incurred by any person invited to visit a state agency, the campus of any state institution of higher education or any other facility under control of a higher education governing board or the higher education policy commission to be interviewed concerning his or her possible employment by a state agency, a higher education governing board, the higher education policy commission or agent thereof.
(d) The secretary of the department of administration, the higher education policy commission or a higher education governing board may authorize payment of: (1) All or part of the reasonable expense incurred by a person newly employed by a state agency, a higher education governing board or the higher education policy commission in moving his or her household furniture, effects and immediate family to his or her place of employment; and (2) all or part of the reasonable expense incurred by an employee of a state agency, a higher education governing board or the higher education policy commission in moving his or her household furniture, effects and immediate family as a result of a reassignment of the employee which is considered desirable, advantageous to and in the best interest of the state: Provided, That no part of the moving expenses of any one employee shall be paid more frequently than once in twelve months.
Every appropriation which is payable out of the general revenue, or so much thereof as may remain undrawn at the end of the year for which made, shall be deemed to have expired at the end of the year for which it is made, and no warrant shall thereafter be issued upon it: Provided, That warrants may be drawn through the thirty-first day of July after the end of the year for which the appropriation is made if the warrants are in payment of bills for such year and have been encumbered by the budget office prior to July first; but appropriations for buildings and land or capital outlay shall remain in effect, and shall not be deemed to have expired until the end of three years after the passage of the act by which such appropriations are made: Provided, however, That if such thirty-first day of July is on Saturday, then warrants may only be drawn through the Friday immediately preceding such Saturday, but if such thirty-first day of July is on Sunday, the warrants may be drawn through the Monday immediately following such Sunday.
The Legislature may expire or provide for the expiration of any appropriation prior to the end of the fiscal year for which it is made.
Notwithstanding the provisions of section twelve of this article, in the event that an employee of the West Virginia board of regents or of any of the institutions which it governs elects to receive his salary in twelve equal monthly installments, warrants may be drawn for the last two such installments in the months of July and August following the fiscal year during which such salary was earned: Provided, That such warrants have been encumbered by said board of regents and the budget office prior to the thirtieth day of June of said fiscal year.
No money shall be drawn from the treasury to pay the salary of any officer or employee before his services have been rendered.
The auditor of the state of West Virginia is authorized to deduct and withhold sums from the salaries or other compensation of state officials and employees, to purchase United States government bonds and other United States government obligations, or to pay taxes as may be required by an act or acts of the Congress of the United States of America.
The auditor of the state of West Virginia shall, upon the written request or order of any state official or employee, deduct and withhold sums from the salaries or compensation of state officials and employees to make voluntary purchases of United States government bonds or other United States government obligations for such officials or employees.
The auditor shall keep an account of the accumulated deductions of each state official and employee and shall issue receipts to state officials and employees for all sums deducted and withheld as herein provided. The sums, when deducted, shall be transferred by the auditor to a special fund in the state treasury, and, as soon as reasonably convenient, transmitted to the treasurer of the state of West Virginia, as an issuing agent of federal securities, or such other official or agent of the United States government designated by the secretary of the treasury of the United States of America, from time to time.
Should any official or employee leave the employ of the State at a time when there is not sufficient accumulation of deductions from his salary or compensation to purchase a United States government bond then the auditor shall either purchase United States government savings stamps in the amount of the accumulation or refund to the official or employee the accumulation as an erroneous payment into the special fund herein created.
The auditor shall be responsible for the delivery of United States government bonds or obligations purchased with the deductions from the salaries or compensation of state officials and employees only when the United States government bonds or obligations are presented to him by the official or agent of the United States government for delivery to the state officials or employees.
To promote efficiency and economy in making such deductions as provided herein, the auditor is authorized to promulgate rules and regulations and to designate the time for the presentment of the payroll requisitions for state officials and employees and requisitions for other claims against the state: Provided, That all officials and employees shall be paid at least once every thirty-one days. All officials and employees of the state shall comply with the rules and regulations promulgated by the auditor under this section.
It shall be unlawful for the superintendent, manager, any officer, or any person or persons, board or body, acting or assuming to act for and on behalf of any institution, kept or maintained in whole or in part by this state, to expend for any fiscal year any greater sum for the maintenance or on account of such institution than shall have been appropriated by the Legislature therefor for such year except as provided in section thirteen, article one, chapter twenty-five of this code.
Any such officer or person who, in violation of any of the provisions of the two preceding sections, shall expend any sum or amount of money, or incur any debt or obligation, or make or participate in the making of any such contract, or shall be a party to any such transaction in any official capacity, shall be personally liable therefor, both jointly and severally, and an action may be maintained therefor by the state, or any person prejudiced thereby, in any court of competent jurisdiction, and such official shall further be guilty of a misdemeanor, and, upon conviction thereof, be fined not less than ten nor more than five hundred dollars, and may be confined in jail not less than ten days nor more than one year, and, in addition to the penalties hereinbefore provided, shall forfeit his office. And there shall be no liability upon the state, or the funds thereof, on account of any such debt, obligation or contract.
Except as provided in this section, it shall be unlawful for any state board, commission, officer or employee: (1) To incur any liability during any fiscal year which cannot be paid out of the then current appropriation for such year or out of funds received from an emergency appropriation; or (2) to authorize or to pay any account or bill incurred during any fiscal year out of the appropriation for the following year: Provided, That nothing contained herein shall prohibit entering into a contract or lease for buildings, land and space, the cost of which exceeds the current year's appropriation, even though the amount is not available during the then current year, if the aggregate cost does not exceed the amount then authorized by the Legislature. Nothing contained herein shall repeal the provisions of the general law relating to the expiration of appropriations for buildings and land.
Any member of a state board or commission or any officer or employee violating any provision of this section shall be personally liable for any debt unlawfully incurred or for any payment unlawfully made.
It shall be unlawful for any county court, board of education or the council of a municipal corporation, or other body charged with the administration of the fiscal affairs of any county, school district, independent school district or municipality, to pay any claim for services rendered or materials furnished unless an itemized account therefor is filed by the claimant covering the claim. Such account shall be itemized in detail, and shall show, among other things, the following: If the claim is for services, it shall show the kind of service, the dates when same was performed and the name of the person performing it; if the claim is for material or supplies furnished, the claim shall show in detail the kind of material or supplies, the quantity, dates of delivery and to whom delivered; and if the claim is for road or bridge work or for road or bridge material, the amount of which claim is for material in excess of five dollars or for labor in excess of twenty-five dollars, the claim shall be verified by the affidavit of the person making it, and in such affidavit the person making the claim shall be required to state that the services performed or materials furnished, as set forth in such claim, were actually performed or actually furnished, and that the claim as stated is true and correct and that there is justly due to the claimant the sum set forth in the account. If any person shall swear falsely in the making of such affidavit, he shall be deemed guilty of false swearing. The president or presiding officer of the fiscal body allowing claims shall indorse on all accounts allowed the words "allowed and payment authorized," together with the date of allowance and signature of the president or other presiding officer.
(b) It is the duty of the county board of education, county commission or governing body of a municipality to adopt a system of internal controls satisfactory to the tax commissioner as ex officio, the chief inspector and supervisor of public offices for the documentation and reporting of all transfers or disbursements of funds accomplished by electronic or wire transfer to ensure the safety and integrity of the payment process.
(c) The county board of education, county commission or governing body of a municipality shall also adopt procedures:
(1) Governing the method by which the treasurer is authorized to direct payments from the funds of the county board of education, county commission or municipality on deposit with a banking institution;
(2) Governing the method of payment of obligations of the county board of education, county commission or municipality, including payment by check, draft, electronic or wire transfer, or other method of payment mutually acceptable to the county board of education, county commission or governing body of a municipality, and the banking institution; and
(3) Covering any other matters it believes necessary to ensure the safety and integrity of the payment process.
(d) A county board of education, county commission or governing body of a municipality shall file a copy of the procedures it adopts in accordance with the provisions of subsection (c) of this section with each banking institution in which its funds are deposited.
(e) The treasurer of the county board of education, county commission or municipality, and the banking institution shall agree to follow rules and procedures for electronic fund transfers promulgated by the federal reserve bank and the national clearing house association (NACHA) to ensure the safety and integrity of the payment process. These safeguards must be approved by the county board of education, county commission or governing body of a municipality. If the county board of education, county commission or governing body of a municipality finds that the safeguards are consistent with and do not contravene the procedures adopted under the provisions of subsection (c) of this section, the safeguards must be approved.
(f) This section applies to disbursements or transfers made after the thirty-first day of May, one thousand nine hundred ninety-eight.
(a) "Document" means any authentication, certificate, claim, form, invoice, record, report, requisition, security, statement or other similar item that may be in a tangible or electronic form.
(b) "Electronic" means electrical, digital, magnetic, wireless, optical, electromagnetic, biometric, or any other technology that is similar to these technologies.
(c) "Electronic commerce" means using electronic techniques for accomplishing business transactions, including electronic mail or messaging, electronic bulletin board, Internet technology, electronic funds transfers, electronic data interchange (EDI) techniques, and any other related electronic technologies.
(d) "Security procedure" means a methodology or procedure for the purpose of:
(1) Preventing access by unauthorized parties;
(2) Verifying that an electronic record or electronic signature is that of a specific party or created by a specific electronic point of origin; or
(3) Detecting error or alteration in the communication, content, or storage of an electronic record since a specific point in time.
(e) "WEB commerce" means electronic commerce on the Internet.
(b) A document or a signature received, issued or used by the Auditor or the Treasurer shall be considered an original and may not be denied legal effect on the ground that it is in electronic form.
(c) The Auditor or Treasurer may, in his or her discretion, require documents filed with or submitted to his or her respective office be filed or submitted in a prescribed electronic format.
(d) The Auditor or Treasurer, in his or her discretion, may waive:
(1) Any requirements for a document filed or submitted in an electronic format; or
(2) Any requirements for the certification, notarization or verification of a document filed or submitted in an electronic format.
(e) The head of each spending unit is responsible for adopting and implementing security procedures to ensure adequate integrity, security, confidentiality, and auditability of the business transactions of his or her spending unit when utilizing electronic commerce.
terminals, etc., for special purposes and
circumstances relating to certain public assistance
payments.
(a) The state treasurer shall have authority to contract with
banking institutions and other entities to establish point of sale
terminals ("POS terminals"), as defined in section twelve-b,
article eight, chapter thirty-one-a of this code, that accept the
West Virginia check card and the cards issued by state spending
units to recipients of state or federal funds, food or other
benefits. If other entities decline to provide the POS terminals
in a manner that meets the requirements of this section, the
treasurer is authorized to establish, own and operate POS
terminals. The treasurer may place the POS terminals and
associated equipment at any location within this state where he or
she or the department of health and human resources determines the
equipment is needed to provide reasonable access to users of the
cards. The POS terminals authorized pursuant to this section may
be used to provide any amount of cash payment or allowable purchase
of retail items or other benefits as determined by the state
treasurer, pursuant to state law and rules and, where necessary, in
cooperation with any appropriate federal agencies.
(b) POS terminals established pursuant to this section may be jointly owned and operated with private sector financial institutions and may be established for the sole purpose of providing access to electronically transmitted government benefits or payments. However, if the state treasurer establishes POS terminals, they shall be made available for use by the general public and the retailer shall reimburse the state for each transaction as per an agreement entered into at the time the POS terminals are established.
(c) Any retailer, agency or other person providing cash withdrawal services for state administered electronic cards from its own funds through POS terminals established pursuant to this section are limited to charging a fee for the service in the amount of the higher of one dollar or one percent of the amount of cash withdrawn.
(d) There is hereby created in the state treasury a separate special revenue account, which shall be an interest bearing account, to be known as the "Point of Sale Terminals Collection Account". The account shall contain any funds received from transactions on POS terminals installed by the state treasurer and any other funds authorized by the Legislature. Moneys in the account shall be used by the treasurer to pay the fees and costs associated with the POS terminals and related equipment, and for such other purposes as determined by the Legislature.
(e) In carrying out the purposes of this article, the treasurer shall not compete with private sector providers of POS terminals, banks or other financial institutions, or for profit. If a private sector provider, bank or other financial institution certifies to the treasurer that it can provide POS terminals to meet the requirements contained within this article, the treasurer shall not establish or maintain equipment in the locations identified in the certification. Nothing in this article shall authorize the treasurer to establish or operate automatic teller machines.
(b) To facilitate electronic commerce, the State Treasurer may charge a spending unit for the banking and other expenses incurred by the Treasurer on behalf of the spending unit and for any work performed, including, without limitation, assisting in the development of a website and utilization of the Treasurer's payment gateway. A special revenue account, entitled the Treasurer's Financial Electronic Commerce Fund, is created in the State Treasury to receive the amounts charged by the Treasurer. The Treasurer may expend the funds received in the Treasurer's Financial Electronic Commerce Fund only for the purposes of this article and for other purposes as determined by the Legislature.
(c) The State Treasurer may authorize a spending unit to assess and collect a fee to recover or pay the cost of accepting bank, charge, check, credit or debit cards from amounts collected.
(d) Upon written request from a political subdivision, the State Treasurer may provide services of his or her office to a political subdivision and charge for the services.
(e) The State Treasurer shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this section.
(b) The sale of property by the Treasurer, or other state spending unit, by using electronic commerce is, for all purposes,
deemed a sale of personal property within the State of West Virginia.
general revenue surplus balance; the general revenue surplus appropriation account balance; the state general revenue reappropriated account balance; the state general revenue current account balance; the total state account balance; and the total general revenue.
Notwithstanding restrictions which may otherwise be provided by law concerning membership on any board, agency or commission, the auditor and treasurer each may designate a representative who is authorized to act for and on their behalf in any and all matters relating to those memberships.
(b) The treasurer is authorized to make transfers to and from the exceptional items fund for the purpose of clearing irreconcilable items carried forward on his accounts with state depositories: Provided, That no transfer may be made as to any irreconcilable item in excess of fifty dollars without the approval of the state auditor.
(c) The treasurer and auditor shall jointly promulgate rules and regulations establishing procedures and conditions for issuance of substitute checks to payees in cases where the checks originally issued are erroneous, or have been lost, mutilated, destroyed, stolen or forged. Any disbursements pursuant to such rules and regulations shall be made from the exceptional items fund. Any moneys received by the state from persons responsible for wrongfully cashing such originally issued checks shall be deposited in such fund.
The fees received for the service shall be deposited in the cash funds and itemized accounts of the receipts shall be maintained. Any check determined by the treasurer to be uncollectible shall be charged against the fund from which it was cashed. Before the first day of July, two thousand one and at least every three fiscal years thereafter, the legislative auditor shall audit the cash funds and all accounts and records relating to the service provided pursuant to this section. If the amount of either cash fund, after charges for uncollectible checks, exceeds one hundred thousand dollars at the conclusion of any audit, the treasurer shall transfer the excess to the general revenue fund.
Repealed.
Acts, 1997 Reg. Sess., Ch. 95
(1) "Grantor" means a state spending unit awarding a state grant.
(2) "Person" includes any corporation, partnership, association, individual or other legal entity. The term "person" does not include a state spending unit or a local government as defined in section one-a, article nine, chapter six of this code.
(3) "Report" means an engagement, such as an agreed-upon procedures engagement or other attestation engagement, performed and prepared by a certified public accountant to test whether state grants were spent as intended. The term "report" does not mean a full-scope audit or review of the person receiving state funds.
(4) "State grant" means funding provided by a state spending unit, regardless of the original source of the funds, to a person upon application for a specific purpose. The term "state grant" does not include: (A) Payments for goods and services purchased by a state spending unit; (B) compensation to state employees and public officials; (C) reimbursements to state employees and public officials for travel or incidental expenses; (D) grants of student aid; (E) government transfer payments; (F) direct benefits provided under state insurance and welfare programs; (G) funds reimbursed to a person for expenditures made for qualified purposes when receipts for the expenditures are required prior to receiving the funds: Provided, That notwithstanding the provisions of this subdivision, funding provided pursuant to section twelve, article two, chapter five-b is included within the term "state grant"; (H) retirement benefits; and (I) federal pass-through funds that are subject to the federal Single Audit Act Amendments of 1996, 31 U.S.C. 7501, et seq. The term "state grant" does not include formula distributions to volunteer and part-volunteer fire departments made pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter.
(b) (1) Any person who receives one or more state grants in the amount of fifty thousand dollars or more in the aggregate in a state's fiscal year shall file with the grantor a report of the disbursement of the state grant funds. When the grantor causes an audit, by an independent certified public accountant, to be conducted of the grant funds, the audit is performed using generally accepted government auditing standards and a copy of the audit is available for public inspection, no report is required to be filed under this section. An audit performed that complies with Office of Management and Budget circular A-133, as published on the twenty-seventh day of June, two thousand three, and submitted within the period provided in this section may be substituted for the report.
(2) Any person who receives a state grant in an amount less than fifty thousand dollars or who is not required to file a report because an audit has been conducted or substituted as provided by subdivision (1) of this subsection shall file with the grantor a sworn statement of expenditures made under the grant.
(3) Reports and sworn statements of expenditures required by subdivisions (1) and (2) of this subsection shall be filed within two years of the end of the person's fiscal year in which the disbursement of state grant funds by the grantor was made. The report shall be made by an independent certified public accountant at the cost of the person receiving the state grant. State grant funds may be used to pay for the report if the applicable grant provisions allow. The scope of the report is limited to showing that the state grant funds were spent for the purposes intended when the grant was made.
(c) (1) Any person failing to file a required report or sworn statement of expenditures within the two-year period provided in subdivision (3), subsection (b) of this section for state grant funds disbursed after the first day of July, two thousand three, is barred from subsequently receiving state grants until the person has filed the report or sworn statement of expenditures and is otherwise in compliance with the provisions of this section.
(2) Any grantor of a state grant shall report any persons failing to file a required report or sworn statement of expenditures within the required period provided in subdivision (3), subsection (b) of this section for a state grant disbursed after the first day of July, two thousand three, to the Legislative Auditor for purposes of debarment from receiving state grants.
(d) (1) The state agency administering the state grant shall notify the grantee of the reporting requirements set forth in this section.
(2) All grantors awarding state grants shall, prior to awarding a state grant, take reasonable actions to verify that the person is not barred from receiving state grants pursuant to this section. The verification process shall, at a minimum, include:
(A) A requirement that the person seeking the state grant provide a sworn statement from an authorized representative that the person has filed all reports and sworn statements of expenditures for state grants received as required under this section; and
(B) Confirmation from the Legislative Auditor by the grantor that the person has not been identified as one who has failed to file a report or sworn statement of expenditures under this section. Confirmation may be accomplished by accessing the computerized database provided in subsection (e) of this section.
(3) If any report or sworn statement of expenditures submitted pursuant to the requirements of this section provides evidence of a reportable condition or violation, the grantor shall provide a copy of the report or sworn statement of expenditures to the Legislative Auditor within thirty days of receipt by the grantor.
(4) The grantor shall maintain copies of reports and sworn statements of expenditures required by this section and make the reports or sworn statements of expenditures available for public inspection, as well as for use in audits and performance reviews of the grantor.
(5) The Secretary of the Department of Administration has authority to promulgate procedural and interpretive rules and propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to assist in implementing the provisions of subsections (a), (b), (c) and (d) of this section.
(e) (1) Any state agency administering a state grant shall, in the manner designated by the Legislative Auditor, notify the Legislative Auditor of the maximum amount of funds to be disbursed, the identity of the person authorized to receive the funds, the person's fiscal year and federal employer identification number and the purpose and nature of the state grant within thirty days of making the state grant or authorizing the disbursement of the funds, whichever is later. If the state grant was awarded prior to the first day of October, two thousand five, the grantor shall provide the information required by this section by the first day of December, two thousand five.
(2) The State Treasurer shall provide the Legislative Auditor the information concerning formula distributions to volunteer and part-volunteer fire departments, made pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter, the Legislative Auditor requests and in the manner designated by the Legislative Auditor.
(3) The Legislative Auditor shall maintain a list identifying persons who have failed to file reports and sworn statements required by this section. The list may be in the form of a computerized database that may be accessed by state agencies over the Internet.
(f) An audit of state grant funds may be authorized at any time by the Joint Committee on Government and Finance to be conducted by the Legislative Auditor at no cost to the grantee.
(g) (1) Volunteer and part-volunteer fire departments receiving formula distributions pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter shall either:
(A) File a report, as defined in subdivision (3), subsection (a) of this section with the Legislative Auditor within the same time frames as are required for sworn statements of annual expenditures to be filed under this section. The report shall be made by an independent certified public accountant at the cost of the volunteer or part-volunteer fire department. The scope of the report is limited to showing that the funds distributed were spent for authorized purposes; or
(B) File a sworn statement of annual expenditures with the Legislative Auditor on or before the fourteenth day of February of each year. The sworn statement of expenditures shall be signed by the chief or director of the volunteer fire department and shall be made under oath and acknowledged before a notary public.
(2) If the sworn statement or report required by this subsection is not filed on or before the fifteenth day of May, unless the time period is extended by the Legislative Auditor, the Legislative Auditor may conduct an audit of the volunteer or part-volunteer fire department.
(3) If the sworn statement of annual expenditures or report required by this subsection is not filed with the Legislative Auditor by the first day of July, unless the time period is extended by the Legislative Auditor, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of any amount that would otherwise be distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter until the report is complete. Moneys withheld pursuant to this subdivision are to be deposited in the special revenue account created in the State Treasury in subdivision (4) of this subsection.
(4) The Legislative Auditor may assign an employee or employees to perform audits or reviews at the direction of the Legislative Auditor of the disbursement of state grant funds to volunteer fire departments. The volunteer fire department shall cooperate with the Legislative Auditor, the Legislative Auditor's employees and the State Auditor in performing their duties under this section. If the Legislative Auditor determines a volunteer fire department is not cooperating, the Legislative Auditor shall notify the State Treasurer who shall withhold payment of any amount that would otherwise be distributed to the fire department under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter until the Legislative Auditor informs the Treasurer that the fire department has cooperated as required by this section. The State Treasurer shall pay the amount withheld into a special revenue account hereby created in the State Treasury and designated the "Volunteer Fire Department Audit Account". If, after one year from payment of the amount withheld into the special revenue account, the Legislative Auditor informs the State Treasurer of continued noncooperation by the fire department, the State Treasurer shall pay the amount withheld to the fund from which it was distributed to be redistributed the following year pursuant to the applicable provisions of those sections.
(5) Whenever the State Auditor performs an audit of a volunteer fire department for any purpose the Auditor shall also conduct an audit of other state funds received by the fire department pursuant to sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section seven, article twelve-c of said chapter. The Auditor shall send a copy of the audit to the Legislative Auditor. The Legislative Auditor may accept an audit performed by the Auditor in lieu of performing an audit under this section.
(6) If the Legislative Auditor is notified by a grantor that a fire department has failed to file a report or a sworn statement of expenditures for a state grant it received, the Legislative Auditor shall notify the Treasurer who shall withhold further distributions to the fire department in the same manner provided in subdivision (3) of this subsection.
(h) Any report submitted pursuant to the provisions of this section may be filed electronically in accordance with the provisions of article one, chapter thirty-nine-a of this code.
(i) Any person who files a fraudulent sworn statement of expenditures under subsection (b) or (g) of this section, a fraudulent sworn statement under subsection (d) of this section or a fraudulent report under this section is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.
(1) "Fiscal year" means the fiscal year of the state.
(2) "Individual base year premium" means the workers' compensation insurance premium that became due and payable by a volunteer fire department after June 30, 2010 but before July 1, 2011.
(3) "Individual premium" means the workers' compensation premium due and payable by a volunteer fire department in each twelve month period beginning on or after July 1, 2011.
(4) "Total base year premium" means the aggregate workers' compensation insurance premium due and payable by all volunteer fire departments as determined by the Insurance Commissioner after June 30, 2010 but before July 1, 2011.
(5) "Total premium" means the aggregate workers' compensation insurance premium due and payable by all volunteer fire departments in each twelve month period beginning on or after July 1, 2011.
(b) In recognition of the burden of increasing workers' compensation insurance premiums on volunteer fire departments, the Legislature has determined that additional funding assistance should be made available to eligible departments to pay a portion of those premium increases beginning with invoices due and payable on or after July 1, 2011.
(c) There is hereby established a special program which shall be known as the "Volunteer Fire Department Workers' Compensation Subsidy Program." The program shall be administered by the State Auditor from moneys that may be appropriated and designated for the program by the Legislature.
(d) The State Auditor shall administer the distribution of moneys appropriated for Volunteer Fire Department Workers' Compensation Subsidy Program to volunteer fire departments to help defray workers' compensation insurance premium increases.
(1) Volunteer fire departments shall request supplemental funds by submitting to the Auditor the following information:
(A) The previous fiscal year's workers' compensation premium invoices with paid receipts;
(B) The current fiscal year's workers' compensation premium invoices showing the amount due and due date and any applicable paid receipts; and
(C) Any other information the Auditor deems necessary for administering the subsidy on forms and schedules as the Auditor directs. The Auditor is authorized to set up an electronic filing system at his or her discretion for filing of the aforementioned information.
(2) After determining that there is a premium increase and the amount of the premium increase for the volunteer fire department requesting the subsidy, the Auditor shall make disbursements in the manner set forth in subsection (e) of this section subject to the following requirements:
(A) The volunteer fire department must be in good standing with the State Fire Marshal;
(B) The volunteer fire department must be registered with the Auditor's Office in a form and manner prescribed by the Auditor prior to being eligible for consideration of any subsidy, which registration must be completed no fewer than thirty days prior to the due date of the workers' compensation premium;
(C) The volunteer fire department must agree that the subsidy for its workers' compensation insurance premium increase will be paid directly to its insurance carrier by the Auditor and that it will timely pay the balance of the premium due; and
(D) Should a volunteer fire department fail to pay the balance of its workers' compensation insurance premium after a disbursement by the auditor and that insurance policy is subsequently cancelled, the premium paid by the Auditor shall be returned directly to him or her. If the Auditor does not receive a reimbursement for a cancelled policy, he or she shall seek reimbursement for the subsidy portion of the insurance premium from the State Treasurer when the treasurer makes the next quarterly payment to the volunteer fire department pursuant to sections thirty-three and fourteen-d, article three, chapter thirty-three of this code.
(e) Beginning with the fiscal year that starts July 1, 2011, and continuing in each fiscal year thereafter, after the Auditor has verified that a volunteer fire department is eligible for a subsidy pursuant to this section, he or she shall pay on behalf of a volunteer fire department its subsidy, which is calculated by:
(1) Dividing the total amount of premium subsidy allocated by the Legislature to the Volunteer Fire Department Workers' Compensation Subsidy Program by the total premium minus the total base year premium, which calculation produces the "total shortfall multiplier"; and
(2) Multiplying the total shortfall multiplier determined in subdivision (1) of this subsection by the individual premium less the individual base year premium.
(3) In no event shall a volunteer fire department receive a workers' compensation premium subsidy greater than one hundred percent of its premium increase.
(f) For fiscal years after July 1, 2011, the Auditor shall consult with the Insurance Commissioner to determine the total amount of workers' compensation premium due by volunteer fire departments for any subsequent fiscal year. The Auditor may determine payment dates based upon information reasonably available for such a determination.
(g) The Auditor may promulgate emergency rules and may propose for promulgation legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, as are necessary to provide for implementation and enforcement of the provisions of this section.
(h) The volunteer fire departments' workers' compensation premium subsidy program shall undergo a review to assess its
effectiveness after three years of operation. The Auditor shall
submit a report to the Joint Committee on Government and Finance
not later than February 1, 2015, and provide details of the program
operation including funds distributed and departments taking
advantage of the subsidy.
(b) The state treasurer may not implement the banking program in any school in a county unless he or she obtains permission from the county board of education and the principal of the school; and
(c) Nothing in this section shall be construed to require any professional or service employee to perform additional duties as a result of the establishment of the banking program.
(1) Created a fund or account and provided that only a specified amount is allowed to remain in the fund or account from one fiscal year to another, or other specified period; and
(2) Required that excess amounts are to revert or be deposited into the general revenue fund, school fund or other specified fund or account.
(b)(1) If a statutory provision provides that only a specified amount is allowed to remain in a fund from one fiscal year to another, the treasurer shall transfer the excess amount, as of the date specified by the provision, no later than the fifteenth day of August of each year and give written notice of the transfer to all spending units that are authorized to use the fund or account.
(2) If a statutory provision provides for the transfer of excess amounts at a time other than the end of a fiscal year, the treasurer shall transfer the specified excess amounts within fifteen days of the time provided.
(c) The treasurer shall file quarterly reports with the joint committee on government and finance setting forth the accounts and funds from which excess funds were transferred and the amounts transferred.
(b) The state auditor shall establish modes of communication sufficient to receive reports of suspected fraud, misappropriation of, mismanagement or waste of state funds. Reports of suspected fraud, misappropriation, mismanagement or waste may be filed by any citizen or employee of the state of West Virginia.
(c) Nothing in this article shall be construed to limit the authority of any other governmental entity to conduct an internal investigation of suspected fraud, misappropriation, mismanagement or waste.
(a) The authority to enforce the provisions of this article shall be vested in the state auditor. The state auditor shall promptly forward any evidence of suspected fraud, misappropriation of, mismanagement or waste of state funds to the commission on special investigations and, if potentially criminal in nature, to the prosecuting attorney of the county in which such is alleged to have taken place, to the law-enforcement agency with jurisdiction in the area as well as to the commission on special investigations.
(b) If such reports are made about an agency that has its own investigative body, then the state auditor may refer evidence of the fraud, misappropriation, mismanagement or waste to that investigative body.
(a) Educational facilities, nonprofit organizations, juvenile detention centers, municipal and county public safety offices and other public, charitable or educational enterprises or organizations are always in need of computers, telecommunications devices and other technological equipment, while the acquisition of such equipment is costly;
(b) The state auditor must frequently purchase computers, telecommunications devices and other technological equipment for his or her interaction with national and international financial services industries;
(c) The purchase by the state auditor of modern computers, telecommunications devices and other technological equipment frequently results in the surplus of existing equipment;
(d) Surplus equipment is generally obsolete and may no longer be used effectively by agency employees;
(e) Although the computers, telecommunications devices and other technological equipment is no longer useful in interacting with the financial services industry, they may still be useful items for a less complex and less high-speed dependent use;
(f) Heretofore, the state auditor has stripped the equipment for spare parts for other machines and that this continued practice does not necessarily result in the equipment's highest and best remaining use; and
(g) Rather than break down the equipment for spare parts or send obsolete machines to the surplus property unit of the state purchasing division where they may languish with lack of use, it would be in the best interest of the state that any obsolete computers, telecommunications devices or technological equipment be donated by the state auditor's office to educational facilities, nonprofit organizations, juvenile detention centers, municipal and county public safety offices and other public, charitable or educational enterprises or organizations.
(b) The program shall be administered by a director as appointed or employed by the state auditor. The auditor may either appoint the director from existing staff from his or her office or may employ a director from existing funds.
(c) The director shall keep records and accounts that indicate the equipment donated, the age of the equipment, the reasons for declaring it obsolete and to which educational facility, nonprofit organization, juvenile detention center, municipal or county public safety office or other public, charitable or educational enterprise or organization the equipment was donated.
(b) The treasurer may by formal order of record fix fair and reasonable charges for the care, custody, exchange and substitution of securities deposited by insurance companies and companies issuing annuity contracts. The treasurer shall collect the charges from the companies and shall deposit the collections in the general revenue fund: Provided, That no charge shall be made against any company depositing securities of the par value of less than three hundred thousand dollars.
(b) The "Treasurer's Safekeeping Fund" is established in the state treasury. The treasurer shall deposit moneys received pursuant to this article in the Treasurer's Safekeeping Fund. The treasurer is authorized to invest the money in accordance with this code and the restrictions placed on the money, with earnings accruing to the moneys in the fund. The treasurer shall prescribe the forms and procedures for processing the moneys.
For purposes of this section, "improved real property" means all real property within the limits of an incorporated city or town on which permanent buildings suitable for residential, industrial or commercial use are located.
For purposes of this section, real property shall not be deemed to be encumbered by reason of the existence of instruments reserving rights-of-way, sewer rights and rights in walls, nor by reason of building restrictions or other restrictive covenants, nor by reason of the fact that it, or any part thereof, is subject to lease under which rents or profits are reserved to the owner: Provided, That the deed of trust for such investment is a full and unrestricted first lien upon the property.
(b) Any public official, board, commission or department of this state charged with the approval of securities required to be deposited in accordance with this section, shall, at least annually and more often if deemed proper, appoint a disinterested person or persons, not exceeding three, to make an examination and appraisal of the securities deposited to determine if those securities meet the requirements of the law of this state. The cost of that examination and appraisal and expenses shall be borne by the person or corporation required to make the deposits as security: Provided, That the total cost and expenses shall not be less than ten dollars nor more than twenty-five dollars per diem for each person conducting the examination.
This article, which may be cited as the "West Virginia Investment Management Act", is enacted to modernize the procedures for the investment of funds of the state and its political subdivisions for the purpose of increasing the investment return of those funds.
(b) The Legislature finds and declares that teachers and other public employees throughout the state are experiencing economic difficulty and that in order to reduce this economic hardship on these dedicated public employees and to help foster sound financial practices, the West Virginia Investment Management Board may develop, implement and maintain an efficient and modern system for the investment and management of the state's money, except those moneys managed in accordance with article six-c of this chapter. The Legislature further finds that in order to implement these sound fiscal policies, the West Virginia Investment Management Board shall operate as an independent board with its own full-time staff of financial professionals, immune to changing political climates, in order to provide a stable and continuous source of professional financial management.
(c) The Legislature hereby finds and declares further that experience has demonstrated that prudent investment provides diversification and beneficial return not only for public employees but for all citizens of the state and that in order to have access to this sound fiscal policy, public employee and employer contributions to the 401(a) plans are declared to be made to an irrevocable trust on behalf of each plan, available for no use or purpose other than for the benefit of those public employees.
(d) The Legislature hereby finds and declares further that the Workers' Compensation Fund and Coal-Workers' Pneumoconiosis Fund are trust funds to be used exclusively for those workers, miners and their beneficiaries who have sacrificed their health in the performance of their jobs and further finds that the assets available to pay awarded benefits should be prudently invested so that awards may be paid.
(e) The Legislature hereby finds and declares further that an independent public body corporate with appropriate governance is the best means of assuring prudent financial management of these funds under rapidly changing market conditions and regulations.
(f) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia Investment Management Board, created and established by this article, is acting in all respects for the benefit of the state's public employees and ultimately the citizens of the state and the West Virginia Investment Management Board may act as trustee of the irrevocable trusts created by this article and to manage and invest other state funds.
(g) The Legislature hereby finds and declares further that the standard of care and prudence applied to trustees, the conduct of the affairs of the irrevocable trusts created by this article and the investment of other state funds is intended to be that applied to the investment of funds as described in the "Uniform Prudent Investor Act" codified as article six-c, chapter forty-four of this code and as described in section eleven of this article.
(h) The Legislature further finds and declares that the West Virginia Supreme Court of Appeals declared the West Virginia Trust Fund Act unconstitutional in its decision rendered on the twenty-eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized investments in corporate stock, but the court also recognized that there were other permissible constitutional purposes of the West Virginia Trust Fund Act and that it is the role of the Legislature to determine those purposes consistent with the court's decision and the Constitution of West Virginia.
(i) The Legislature hereby further finds and declares that it is in the best interests of the state and its citizens to create a new investment management board in order to: (1) Be in full compliance with the provisions of the Constitution of West Virginia; and (2) protect all existing legal and equitable rights of persons who have entered into contractual relationships with the West Virginia Board of Investments and the West Virginia Trust Fund.
(1) "Beneficiaries" means those individuals entitled to benefits from the participant plans;
(2) "Board" means the governing body for the West Virginia Investment Management Board and any reference elsewhere in this code to board of investments or West Virginia Trust Fund means the board as defined in this subdivision;
(3) "401(a) plan" means a plan which is described in section 401(a) of the Internal Revenue Code of 1986, as amended, and with respect to which the board has been designated to hold assets of the plan in trust pursuant to the provisions of section nine-a of this article;
(4) "Local government funds" means the moneys of a political subdivision, including policemen's pension and relief funds, firemen's pension and relief funds and volunteer fire departments, transferred to the board for deposit;
(5) "Participant plan" means any plan or fund subject now or hereafter to subsection (a), section nine-a of this article;
(6) "Political subdivision" means and includes a county, municipality or any agency, authority, board, county board of education, commission or instrumentality of a county or municipality and regional councils created pursuant to the provisions of section five, article twenty-five, chapter eight of this code;
(7) "Trustee" means any member serving on the West Virginia Investment Management Board: Provided, That in section nine-a of this article in which the terms of the trusts are set forth, "trustee" means the West Virginia Investment Management Board;
(8) "Securities" means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
(9) "State funds" means all moneys of the state which may be lawfully invested except the "school fund" established by section four, article XII of the state constitution.
(b) The board shall be governed by a board of trustees, consisting of thirteen members:
(1) Nominations made to the West Virginia trust fund board and the West Virginia board of investments shall remain in effect and are hereby specifically reauthorized and those members shall be members of the investment management board and shall serve out the remainder of their respective terms subject to the advice and consent of the Senate: Provided, That prior appointments which have been confirmed by the Senate are hereby specifically reauthorized without further action of the Senate.
(2) Any appointment is effective immediately upon appointment by the governor with respect to voting, constituting a quorum, receiving compensation and expenses and all other rights and privileges of the trustee position. All appointees shall have experience in pension management, institutional management or financial markets and one trustee shall be an attorney experienced in finance and investment matters and one trustee shall be a certified public accountant.
(3) The governor, the state auditor and the state treasurer or their designees shall serve as members of the board. They shall serve by virtue of their office and are not entitled to compensation under the provisions of this article. The governor, the auditor and the treasurer or their designees are subject to all duties, responsibilities and requirements of the provisions of this article, including, but not limited to, the provisions of subsections (e) and (f), section four of this article.
(c) At the end of each trustee's term, the governor may reappoint or appoint a successor who shall serve for a term ending on the thirty-first day of January in the sixth year following the year of his or her appointment: Provided, That for all terms ending in the year two thousand one, two appointments shall be for two-year terms; two appointments shall be for three-year terms; one shall be for a four-year term; and two shall be for six-year terms. Except for vacancy appointments made pursuant to subsection (d) of this section, all subsequent appointments shall be for terms ending on the thirty-first day of January in the sixth year following the year of appointment. No more than six of the ten appointed trustees may belong to the same political party.
(d) In the event of a vacancy among the trustees, an appointment shall be made by the governor to fill the unexpired term.
(e) The governor may remove any trustee, other than trustees who serve by virtue of their elective office, in case of gross negligence or misfeasance and may declare that position vacant and may appoint a person for the vacancy as provided in subsection (d) of this section.
(f) Each trustee, other than those enumerated in subsection (b), subdivision (3) of this section, is entitled to receive and, at the trustee's option, the board shall pay to the trustee compensation in the amount of five thousand dollars per year and additional compensation in the amount of five hundred dollars per meeting attended by the trustee in excess of the four quarterly meetings required by this section. In addition, all trustees shall receive reasonable and necessary expenses actually incurred in discharging trustee duties pursuant to this article.
(g) The board shall meet quarterly and may include in its bylaws procedures for the calling and holding of additional meetings. For any quarterly or additional meeting in which the board shall review or modify its securities list or its investment objectives pursuant to subsection (f), section twelve of this article, the board shall give ten days' notice in writing to the designated representative of each participant plan selected pursuant to subdivision (1), subsection (i) of this section and the meeting shall be open to the members and beneficiaries of the participant plans for that portion of the meeting in which the board undertakes the review or modification.
(h) The board shall hold an annual meeting before the start of the fiscal year. The annual meeting may also serve as a quarterly meeting. The annual meeting shall be open to the public and the board shall receive oral and written comments from representatives, members and beneficiaries of the participant plans and from other citizens of the state. At the annual meeting, the board shall adopt a fee schedule and a budget reflecting fee structures for the year.
(i) Pursuant to subsection (j) of this section, the board shall meet with committees representing the participant plans to discuss the board's drafting, reviewing or modifying the written investment policy of the trust with respect to that committee's participant plan pursuant to section twelve of this article. Representatives and committees shall be designated as follows:
(1) The West Virginia consolidated public retirement board shall promulgate procedural rules by which each 401(a) plan for which the board is trustee, shall designate an individual representative of each 401(a) plan and the West Virginia workers' compensation commission shall promulgate procedural rules by which the pneumoconiosis fund and the workers' compensation fund shall designate an individual representative of each fund.
(2) On or before the first day of June of each year, the consolidated public retirement board shall submit in writing to the board the names of the six designated representatives of the 401(a) plans and the workers' compensation commission shall submit the names of the two representatives.
(3) Each designated representative shall provide to the board his or her current address, updated each year on or before the first day of July, to which address the board shall provide notice of meetings of the board pursuant to subsection (g) of this section.
(4) Each designated representative shall submit in writing to the board on or before the first day of July of each year the names of no more than three persons comprising a committee representing the beneficiaries of that representative's participant plan.
(j) At its annual meeting, the board shall meet with each of the seven committees, formed pursuant to subdivision (1), subsection (i) of this section, for the purpose of receiving input from the committees regarding the board's drafting, reviewing or modifying its written investment policy statement for investment of the funds of the participant plans. In developing the investment policy statement, the trustees shall receive each committee's stated objectives and policies regarding the risk tolerances and return expectations of each participant plan, with attention to the factors enumerated in section twelve of this article, in order to provide for the continuing financial security of the trusts and the participant plans. The board may meet with the committees or any of them at its quarterly and additional meetings for the same purpose.
(k) All meetings of the board shall be open to the representatives of the participant plans as appointed pursuant to subdivision (1), subsection (i) of this section. The representatives are subject to any rules, bylaws, guidelines, requirements and standards promulgated by the board. The representatives shall observe standards of decorum established by the board. The representatives are subject to the same code of conduct applicable to the trustees and are subject to all board rules and bylaws. The representatives are also subject to any requirements of confidentiality applicable to the trustees. Each representative is liable for any act which he or she undertakes which violates any rule, bylaw or statute governing ethical standards, confidentiality or other standard of conduct imposed upon the trustees or the representatives. Any meeting of the board may be closed, upon adoption of a motion by any trustee, when necessary to preserve the attorney-client privilege, to protect the privacy interests of individuals, to review personnel matters or to maintain confidentiality when confidentiality is in the best interest of the beneficiaries of the trusts.
(b) The Governor shall be the chairman of the board and the trustees shall elect a vice chairman who may not be a constitutional officer or his or her designee to serve for a term of two years. Effective with any vacancy in the vice chairmanship, the board shall elect a vice chairman to a new two-year term. The vice chairman shall preside at all meetings in the absence of the chairman. Annually, the trustees shall elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the board.
(c) The trustees shall appoint a chief executive officer of the board and shall fix his or her duties and compensation. The chief executive officer shall have five years' experience in investment management with public or private funds within the ten years next preceding the date of appointment. The chief executive officer additionally shall have academic degrees, professional designations and other investment management or investment oversight or institutional investment experience in a combination the trustees consider necessary to carry out the responsibilities of the chief executive officer position as defined by the trustees.
(d) The trustees shall retain an internal auditor to report directly to the trustees and shall fix his or her compensation. The internal auditor shall be a certified public accountant with at least three years' experience as an auditor. The internal auditor shall develop an internal audit plan, with board approval, for the testing of procedures and the security of transactions.
(e) The board shall procure and maintain in effect commercially customary property, liability, crime and other insurance to cover risks of loss from its operations. The types and amounts of the insurance coverages shall be determined by the board, from time to time, in its reasonable discretion, with reference to the types and amounts of insurance coverages purchased or maintained by other public institutions performing functions similar to those performed by the board: Provided, That the board shall purchase a blanket bond for the faithful performance of its duties in the amount of at least ten million dollars. The board may require that appropriate types and amounts of insurance be procured and maintained by, or a fiduciary or surety bond from a surety company qualified to do business in this state for, any person who has charge of, or access to, any securities, funds or other moneys held by the board and the amount of the fiduciary or surety bond shall be fixed by the board. The premiums payable on any insurance or fiduciary or surety bonds that the board may require, from time to time, shall be an expense of the board. In connection with the duties of the board under this subsection, the board may establish, fund and maintain a self-insurance account. If established, the board shall deposit and maintain moneys in the self-insurance account in amounts as may be determined by the board in consultation with one or more qualified insurance or actuarial consultants, and all moneys in any self-insurance account may be used only for the purpose of providing self-insurance, establishing reserves in connection with insurance deductibles, self-insured retentions or self-insurance, or helping to defray the costs of insurance procured under this subsection, and for no other purpose. The board may procure any and all insurance coverages and bonds deemed appropriate by the board or required by the provisions of this article, either through the state Board of Risk and Insurance Management or in the commercial markets, in the discretion of the board.
(f) The trustees and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That the trustees and employees of the board are liable for acts of misfeasance or gross negligence.
(g) The board is exempt from the provisions of sections seven and eleven, article three of this chapter and article three, chapter five-a of this code: Provided, That the trustees and employees of the board are subject to purchasing policies and procedures which shall be promulgated by the board. The purchasing policies and procedures may be promulgated as emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
(h) Any employee of the West Virginia Trust Fund who previously was an employee of another state agency may return to the Public Employees Retirement System pursuant to section eighteen, article ten, chapter five of this code and may elect to either: (1) Transfer to the Public Employees Retirement System his or her employee contributions, with accrued interest and, if vested, his or her employer contributions, with accrued interest and retain as credited state service all time served as an employee of the West Virginia Trust Fund; or (2) retain all employee contributions with accrued interest and, if vested, his or her employer contributions with interest and forfeit all service credit for the time served as an employee of the West Virginia Trust Fund.
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments;
(4) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
(5) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;
(6) Notwithstanding any other provision of law, retain and employ legal, accounting, financial and investment advisors and consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or otherwise dispose of securities and invest funds in interest earning deposits and in any other lawful investments;
(8) Maintain accounts with banks, securities dealers and financial institutions both within and outside this state;
(9) Engage in financial transactions whereby securities are purchased by the board under an agreement providing for the resale of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held by the board are sold under an agreement providing for the repurchase of the securities by the board at a stated price;
(11) Consolidate and manage moneys, securities and other assets of the other funds and accounts of the state and the moneys of political subdivisions which may be made available to it under the provisions of this article;
(12) Enter into agreements with political subdivisions of the state whereby moneys of the political subdivisions are invested on their behalf by the board;
(13) Charge and collect administrative fees from political subdivisions for its services;
(14) Exercise all powers generally granted to and exercised by the holders of investment securities with respect to management of the investment securities;
(15) Contract with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities held by the board;
(16) Make and, from time to time, amend and repeal bylaws, rules and procedures consistent with the provisions of this article;
(17) Hire its own employees, consultants, managers and advisors as it considers necessary and fix their compensation and prescribe their duties;
(18) Develop, implement and maintain its own banking accounts and investments;
(19) Do all things necessary to implement and operate the board and carry out the intent of this article;
(20) Upon request of the State Treasurer, transmit funds for deposit in the State Treasury to meet the daily obligations of state government;
(21) Establish one or more investment funds for the purpose of investing the funds for which it is trustee, custodian or otherwise authorized to invest pursuant to this article. Interests in each fund shall be designated as units and the board shall adopt industry standard accounting procedures to determine each fund's unit value. The securities in each investment fund are the property of the board and each fund shall be considered an investment pool or fund and may not be considered a trust nor may the securities of the various investment funds be considered held in trust. However, units in an investment fund established by or sold by the board and the proceeds from the sale or redemption of any unit may be held by the board in its role as trustee of the participant plans; and
(22) Notwithstanding any other provision of the code to the contrary, conduct investment transactions, including purchases, sales, redemptions and income collections, which shall not be treated by the State Auditor as recordable transactions on the state's accounting system.
(a) The Legislature hereby finds and declares that, during the period beginning the first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of January, one thousand nine hundred eighty-nine, certain overapportionments or overpayments of interest earnings were made by the board of investments to local government participants in the consolidated investment fund local government account.
The Legislature also finds and declares that said participants were not at fault for any losses incurred by the consolidated fund during the aforesaid period, and that the participants were justified in accepting and using the overapportionments or overpayments of interest earnings credited to their accounts.
The Legislature further finds and declares that attempts by the board of investments, the state or any other state officer or agency to recover the overapportionments or overpayments would harm the public good and create economic hardship for local governments, and, therefore, said overapportionments or overpayments ought not to be subject to recovery by the board or any other state officer or agency.
(b) Neither the state, the board of investments nor any other state officer or agency may expend any funds or permit any personnel to seek, or attempt to recover, from participants in the consolidated fund local government account any moneys received by such participants solely as a result of erroneous allocation of interest earnings to the participants' account during the period of time beginning the first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of January, one thousand nine hundred eighty-nine, unless authorized to do so by enactment of a separate and specific statute.
(c) This section shall not apply to any attempt by the board, the state or any other state officer or agency to recover moneys due for any other reason.
(b) The board shall produce monthly financial statements for the assets managed by the board and cause them to be delivered to each member of the board and the executive secretary of the consolidated public retirement board as established in sections one and two, article ten-d, chapter five of this code and to the executive director of the workers' compensation commission as administrator of the workers' compensation fund and coal-workers' pneumoconiosis fund as provided in section one-b, article one, chapter twenty-three of this code and section one, article three of said chapter and section seven, article four-b of said chapter.
(c) The board shall deliver in each quarter to the council of finance and administration and the consolidated public retirement board a report detailing the investment performance of the 401(a) plans.
(d) The board shall cause an annual audit of the reported returns of the assets managed by the board to be made by an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section. The board shall furnish copies of the audit report to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
(e) The board shall provide any other information requested in writing by the council of finance and administration.
(f) All statements and reports with respect to participant plans required in this section shall be available for inspection by the members and beneficiaries and designated representatives of the participant plans.
(b) Each board, commission, department, official or agency charged with the administration of state funds may request the State Treasurer to make moneys available to the board for investment.
(c) Each political subdivision of this state through its treasurer or equivalent financial officer may enter into agreements with the State Treasurer for the investment of moneys of the political subdivision. Any political subdivision may enter into an agreement with a state spending unit from which it receives funds to request transfer of the funds to their investment account with the Investment Management Board or the West Virginia Board of Treasury Investments.
(d) Moneys held in the various funds and accounts administered by the board shall be invested as permitted by this article and subject to the restrictions contained in this article. The board shall report the earnings on the various funds under management to the State Treasurer at the times determined by the State Treasurer. The board shall also establish rules for the administration of the various funds and accounts established by this section as it considers necessary for the administration of the funds and accounts, including, but not limited to: (1) The specification of amounts which may be deposited in any fund or account and minimum periods of time for which deposits will be retained; and (2) creation of reserves for losses: Provided, That in the event any moneys made available to the board may not lawfully be combined for investment or deposited in the consolidated funds established by this section, the board may create special accounts and may administer and invest those moneys in accordance with the restrictions specially applicable to those moneys.
(e) Notwithstanding any provision of this code to the contrary, the funds, pools and securities maintained or invested in by the board in accordance with this article are authorized investments for all local government funds.
(a) The board shall continue to hold each of the participant plans specified by this article in a separate irrevocable trust as trustee pursuant to the terms and provisions set forth in this section and with the earnings and losses accounted for and charged individually to each participant plan and trust: Provided: That the board shall be authorized to invest the assets held in each participant plan in any investment fund even though the board may also invest non-401(a) moneys in the investment fund. Participant plans, each declared by this section to be held in a separate irrevocable trust, include, but are not limited to, the following and any other plans that may be added to this section or otherwise designated by the Legislature from time to time:
(1) The public employees' retirement system;
(2) The teachers' retirement system;
(3) The West Virginia state police retirement system;
(4) The death, disability and retirement fund of the division of public safety;
(5) The judges' retirement system;
(6) The deputy sheriffs' retirement system;
(7) The pneumoconiosis fund;
(8) The workers' compensation fund; and
(9) The wildlife endowment fund.
(b) The Legislature hereby reserves the following rights and powers:
(1) The right by supplemental agreement to amend, modify or alter the terms of the trusts established by this section without consent of the trustee, or any beneficiary, except that no amendment to a trust which holds any 401(a) plan moneys may be made which allows at any time for any part of the corpus or income (other than the part that is required to pay taxes and administration expenses) to be used for, or diverted to, purposes other than for the exclusive benefit of the employees or their beneficiaries in accordance with the requirements of section 401(a)(2) of the Internal Revenue Code, as it may be amended from time to time; and
(2) The right to request and receive additional information from the trustee at any time.
(c) In the administration of the trusts created by this article, the trustee has the following powers:
(1) To purchase, retain, hold, transfer and exchange and to sell, at public or private sale, the whole or any part of the trust estate upon such terms and conditions as it considers advisable;
(2) To invest and reinvest the trust estate or any part of the trust estate, in any kind of property, real or personal, including, but not limited to, mortgage or mortgage participations, common stocks, preferred stocks, common trust funds, investment funds established by the board, bonds, notes or other securities, notwithstanding the provisions of articles five and six, chapter forty-four of this code;
(3) To carry the securities and other property held in trust either in the name of the trustee or in the name of its nominee;
(4) To vote, in person or by proxy, all securities held in trust, to join in or to dissent from and oppose the reorganization, recapitalization, consolidation, merger, liquidation or sale of corporations or property; to exchange securities for other securities issued in connection with or resulting from any transaction; to pay any assessment or expense which the trustee considers advisable for the protection of its interest as holder of the securities; to deposit securities in any voting trust or with any protective or like committee or with a trustee depository; to exercise any option appurtenant to any securities for the conversion of any securities into other securities; and to exercise or sell any rights issued upon or with respect to the securities of any corporation, all upon terms the trustee considers advisable;
(5) To prosecute, defend, compromise, arbitrate or otherwise adjust or settle claims in favor of or against the trustee or other trust estate;
(6) To employ and pay from the trusts legal and investment counsel, brokers and any other assistants and agents the trustee considers advisable; and
(7) To develop, implement and modify an asset allocation plan for each participant plan. The asset allocation plans shall be implemented within the management and investment of the individual trusts.
(d) All trust income shall be free from anticipation, alienation, assignment or pledge by, and free from attachment, execution, appropriation or control by or on behalf of, any and all creditors of any beneficiary by any proceeding at law, in equity, in bankruptcy or insolvency.
(e) Notwithstanding any other provision of this article, in the case of a trust which holds any 401(a) plan's money, it is impermissible at any time for any part of the corpus or income to be (within the taxable year or thereafter) used for, or diverted to, purposes other than the exclusive benefit of the employees and their beneficiaries in accordance with the requirements of section 401(a)(2) of the Internal Revenue Code, as it may be amended from time to time.
(f) The trustee may receive any other property, real or personal, tangible or intangible, of any kind whatsoever, that may be granted, conveyed, assigned, transferred, devised, bequeathed or made payable to the applicable trust and all the properties shall be held, managed, invested and administered by the trustee as provided in this article.
(g) The trustee shall promptly cause to be paid to the state from the applicable trust the amounts certified by the governor as necessary for the monthly payment of benefits to the beneficiaries of the trust.
(h) The trustee shall render an annual accounting to the governor not more than one hundred twenty days following the close of the fiscal year of each trust.
(i) No trust shall be invalid by reason of any existing law or rule against perpetuities or against accumulations or against restraints upon the power of alienation, but each trust shall continue for the time necessary to accomplish the purposes for which it is established.
Repealed.
Acts, 1996 Reg. Sess., Ch. 258.
Repealed.
Acts, 1996 Reg. Sess., Ch. 258.
(b) The board shall make available, subject to cash availability, in the form of a revolving loan, up to one hundred seventy-five million dollars from the consolidated fund to loan the West Virginia economic development authority for business or industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code and to consolidate existing loans authorized to be made to the West Virginia economic development authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one of this code which authorizes a one hundred fifty million dollar revolving loan, and article eighteen-b, chapter thirty-one of this code which authorizes a fifty million dollar investment pool: Provided, That the West Virginia economic development authority may not loan more than fifteen million dollars for any one business or industrial development project. The revolving loan authorized by this subsection must be secured by one note at a variable interest rate equal to the twelve-month average of the board's yield on its cash liquidity pool. The rate must be set on the first day of July and the rate must be adjusted annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly payments made by the West Virginia economic development authority to the board must be calculated on a one hundred twenty-month amortization. The revolving loan must be secured by a security interest that pledges and assigns the cash proceeds of collateral from all loans under this revolving loan pool. The West Virginia economic development authority may also pledge as collateral certain revenue streams from other revolving loan pools which source of funds does not originate from federal sources or from the board.
The outstanding principal balance of the revolving loan from the board to the West Virginia economic development authority may at no time exceed one hundred three percent of the aggregate outstanding principal balance of the business and industrial loans from the West Virginia economic development authority to economic development projects funded from this revolving loan pool. This provision must be certified annually by an independent audit of the West Virginia economic development authority financial records.
(c) The interest rates and maturity dates on the loans made by the West Virginia economic development authority for business and industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code must be at competitive rates and maturities as determined by the West Virginia economic development authority board.
(d) Any and all outstanding loans made by the board, or any predecessor entity, to the West Virginia economic development authority must be refunded by proceeds of the revolving loan contained in this section and no loans may be made hereafter by the board to the West Virginia economic development authority pursuant to section twenty, article fifteen, chapter thirty-one of this code or article eighteen-b of said chapter.
(e) The trustees of the board bear no fiduciary responsibility as provided in section eleven of this article with specific regard to the revolving loan contemplated in this section.
(f) Subject to cash availability, the board shall make available to the West Virginia economic development authority from the consolidated fund a nonrecourse loan in an amount up to twenty-five million dollars, for the purpose of the West Virginia economic development authority making a loan or loans from time to time to the West Virginia enterprise advancement corporation, an affiliated nonprofit corporation of the West Virginia economic development authority. The respective loans authorized by this subsection by the board to the West Virginia economic development authority and by the West Virginia economic development authority to the West Virginia enterprise advancement corporation must each be evidenced by one note and must each bear interest at the rate of three percent per annum. The proceeds of any and all loans made by the West Virginia economic development authority to the West Virginia enterprise advancement corporation pursuant to this subsection must be invested by the West Virginia enterprise advancement corporation in the West Virginia enterprise capital fund, LLC, the manager of which is the West Virginia enterprise advancement corporation. The loan to West Virginia economic development authority authorized by this subsection must be nonrevolving, and advances thereunder must be made at times and in amounts as may be requested or directed by the West Virginia economic development authority, upon reasonable notice to the board, the loan authorized by this subsection is not subject to or included in the limitations set forth in subsection (b) of this section with respect to the fifteen million dollar limitation for any one business or industrial development project and limitation of one hundred three percent of outstanding loans, and may not be included in the revolving fund loan principal balance for purposes of calculating the loan amortization in subsection (b) of this section. The loan authorized by this subsection to the West Virginia economic development authority must be classified by the board as a long-term, fixed income investment, must bear interest on the outstanding principal balance thereof at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, and the principal of which must be repaid no later than the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the thirtieth day of June of each year, which annual installments must commence no later than the thirtieth day of June, two thousand three, in annual principal amounts as may be agreed upon between the board and the West Virginia economic development authority, and which annual installments need not be equal. The loan authorized by this subsection must be nonrecourse and must be payable by the West Virginia economic development authority solely from amounts or returns received by the West Virginia economic development authority in respect of the loan authorized by this subsection to the West Virginia enterprise advancement corporation, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the board must have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. Any and all loans from the West Virginia economic development authority to the West Virginia enterprise advancement corporation made pursuant to this subsection must also bear interest on the outstanding principal balance thereof at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, must be nonrecourse and must be payable by the West Virginia enterprise advancement corporation solely from amounts of returns received by the West Virginia enterprise advancement corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the board must have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. In the event the amounts or returns received by the West Virginia enterprise advancement corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, are not adequate to pay when due the principal or interest installments, or both, with respect to the loan from the West Virginia economic development authority and, as a result thereof, the West Virginia economic development authority is unable to pay the principal or interest installments, or both, with respect to the loan authorized by this subsection by the board to the West Virginia economic development authority, the principal or interest, or both, as the case may be due on the loan made to the West Virginia economic development authority pursuant to this subsection must be deferred, and any and all of these past-due principal and interest payments must promptly be paid to the fullest extent possible upon receipt by the West Virginia enterprise advancement corporation of moneys in respect of its investments in the West Virginia enterprise capital fund, LLC. The trustees or the board bear no fiduciary responsibility as provided in section eleven of this article with regard to the loan authorized by this subsection.
Repealed.
Acts, 1996 Reg. Sess., Ch. 258.
Repealed.
Acts, 1997 Reg. Sess., Ch. 95.
Acts, 2005 Reg. Sess., Ch. 190.
(a) Trustees shall discharge their duties with respect to the 401(a) plans for the exclusive purpose of providing benefits to participants and their beneficiaries;
(b) Trustees shall diversify fund investment so as to minimize the risk of large losses unless, under the circumstances, it is clearly prudent not to do so;
(c) Trustees shall defray reasonable expenses of investing and operating the funds under management; and
(d) Trustees shall discharge their duties in accordance with the documents and instruments governing the trusts or other funds under management insofar as the documents and instruments are consistent with the provisions of this article.
(e) The duties of the board apply only with respect to those assets deposited with or otherwise held by it.
(b) In addition to any investments the board may make pursuant to subsection (h) of this section, the board shall hold in real estate equity investments no more than twenty-five percent of the assets managed by the board and no more than twenty-five percent of the assets of any individual participant plan: Provided, That any such investment be only made upon the recommendation by a professional, third-party fiduciary investment adviser registered with the Securities and Exchange Commission under the Investment Advisors Act of 1940, as amended, upon the approval of the board or a committee designated by the board, and upon the execution of the transaction by a third-party investment manager: Provided, however, That the board's ownership interest in any fund is less than forty percent of the fund's assets at the time of purchase: Provided further, That the combined investment of institutional investors, other public sector entities and educational institutions and their endowments and foundations in the fund is in an amount equal to or greater than fifty percent of the board's total investment in the fund at the time of acquisition. For the purposes of this subsection, "fund" means a real estate investment trust traded on a major exchange of the United States of America, or a partnership, limited partnership, limited liability company or other entity holding or investing in related or unrelated real estate investments, at least three of which are unrelated and the largest of which is not greater than forty percent of the entity's holdings, at the time of purchase.
(c) The board shall hold in international securities no more than thirty percent of the assets managed by the board and no more than thirty percent of the assets of any individual participant plan.
(d) The board may not at the time of purchase hold more than five percent of the assets managed by the board in the nonreal estate equity securities of any single company or association: Provided, That if a company or association has a market weighting of greater than five percent in the Standard & Poor's 500 index of companies, the board may hold securities of that nonreal estate equity equal to its market weighting.
(e) No security may be purchased by the board unless the type of security is on a list approved by the board. The board may modify the securities list at any time and shall give notice of that action pursuant to subsection (g), section three of this article and shall review the list at its annual meeting.
(f) Notwithstanding the investment limitations set forth in this section, it is recognized that the assets managed by the board or the assets of the participant plans, whether considered in the aggregate or individually, may temporarily exceed the investment limitations in this section due to market appreciation, depreciation and rebalancing limitations. Accordingly, the limitations on investments set forth in this section shall not be considered to have been violated if the board rebalances the assets it manages or the assets of the participant plans, whichever is applicable, to comply with the limitations set forth in this section at least once every twelve months based upon the latest available market information and any other reliable market data that the board considers advisable to take into consideration, except for those assets authorized by subsections (b) and (h) of this section for which compliance with the percentage limitations shall be measured at such time as the investment is made.
(g) The board, at the annual meeting required in subsection (h), section three of this article, shall review, establish and modify, if necessary, the investment objectives of the individual participant plans as incorporated in the investment policy statements of the respective trusts so as to provide for the financial security of the trust funds giving consideration to the following:
(1) Preservation of capital;
(2) Diversification;
(3) Risk tolerance;
(4) Rate of return;
(5) Stability;
(6) Turnover;
(7) Liquidity; and
(8) Reasonable cost of fees.
(h) In addition to any and all other investments the board may make under this article and all investment authority granted to the board by this article, the board is expressly authorized to invest no more than twenty percent of the assets managed by the board and no more than twenty percent of the assets of any individual participant plan, or any other endowment or other fund managed by the board, as measured at the time of the investment, in any one or more classes, styles or strategies of alternative investments suitable and appropriate for investment by the board. A suitable and appropriate alternative investment is a private equity fund such as a venture capital, private real estate or buy-out fund; commodities fund; distressed debt fund; mezzanine debt fund; hedge fund; put or call on an individual security purchased for the purpose of hedging an authorized investment position; or fund consisting of any combination of private equity, distressed or mezzanine debt, hedge funds, private real estate, commodities and other types and categories of investment permitted under this article: Provided, That any such investment be only made upon the recommendation by a professional, third-party fiduciary investment adviser registered with the Securities and Exchange Commission under the Investment Advisors Act of 1940, as amended, upon the approval of the board or a committee designated by the board and upon the execution of the transaction by a third-party investment manager: Provided, however, That if the standard confidentiality agreements, policies or procedures of any firm, company or organization through which the board invests in securities prohibit, restrict or limit the disclosure of information pertaining to the securities, the information shall be exempt from disclosure, under the provisions of chapter twenty-nine-b of this code or otherwise, to the extent of the prohibitions, restrictions or limitations: Provided further, That the board's ownership interest in any fund is less than forty percent of the fund's assets at the time of purchase: And provided further, That the combined investment of institutional investors, other public sector entities, and educational institutions and their endowments and foundations in the fund is in an amount equal to or greater than fifty percent of the board's total investment in the fund at the time of acquisition. For the purposes of this subsection, "fund" means a partnership, limited partnership, limited liability company or other form of entity holding or investing in a collection of related or unrelated investments, at least three of which are unrelated and the largest of which is not greater than forty percent of the fund's composition at the time of purchase. To facilitate access to markets, control, manage or diversify portfolio risk, or enhance performance or efficiency in connection with investments in alternative investments and all other types and categories of investment permitted under this article, the board may enter into commercially customary and prudent market transactions consistent with the laws of the state: And provided further, That neither the purpose nor the effect of such transactions may materially increase market risk or market exposure of the total portfolio of investments as adjusted, from time to time, by the board. The investments described in this subsection are subject to the requirements, limitations and restrictions set forth in this subsection and the standard of care set forth in section eleven of this article, but are not subject to any other limitations or restrictions set forth elsewhere in this article or code.
(b) A copy shall be furnished to the chief financial officer of each participant.
(c) Within the first seven calendar days of each calendar year, the board shall file the annual report with the Joint Committee on Government and Finance, with copies to the President of the Senate, Speaker of the House and Legislative Auditor.
(d) Upon request, the report shall be made available to any legislative committee, any banking institution or state or federal savings and loan association in this state and any member of the news media. The report shall be kept available for inspection by any citizen of this state.
(e) The board shall cooperate with any legislative audits, performance and consultant reviews and studies of the board as may be directed by the Joint Committee on Government and Finance.
Acts, 2005 Reg. Sess., Ch. 190.
(a) The board, upon request of the state building commission, shall transfer moneys as a loan to the state building commission in an amount not to exceed in the aggregate twenty-one million dollars for the purposes of financing or refinancing the projects specified in subsections (b) and (d), section eight, article six, chapter five of this code. The money borrowed shall bear interest during the term of the loan at a fixed rate not to exceed the interest rate on treasury notes, bills or bonds of the same term as the term of the loan the week of closing on the loan as reported by the treasury of the United States. Loans made under this subsection shall be repaid in regular monthly or semiannual payments, or as funds are made available by the budget office of department of administration, and shall be paid in full not later than twenty-five years from the date the loans are made with terms and conditions mutually agreed upon by the state building commission and the investment management board.
(b) The state investment management board shall upon request of the state building commission transfer moneys as a loan to the state building commission in an amount not to exceed in the aggregate one hundred thirty-seven million dollars for the purposes of financing construction of regional jails, correctional facilities or building extensions or improvements to regional jails and correctional facilities. Prior to the expenditure of any loan proceeds, the regional jail and correctional facility authority shall certify a list of projects to the state building commission and the joint committee on government and finance that shall be funded from loan proceeds. This certified list cannot thereafter be altered or amended other than by legislative enactment. The state building commission shall borrow money as needed by the regional jail and correctional facility authority. The investment management board shall transfer loan proceeds to the authority for expenditure. The money borrowed shall bear interest during the term of the loan at a fixed rate not to exceed the interest rate on treasury notes, bills or bonds of the same term as the term of the loan the week of closing on the loan as reported by the treasury of the United States.
(c) The regional jail and correctional facility authority shall expend the loan proceeds received under the provisions of subsection (b) of this section to proceed with the projects included in the letter submitted to the joint committee on government and finance dated the fifteenth day of January, one thousand nine hundred ninety-seven: Provided, That the letter shall not be construed to prioritize any project or projects which are included in the letter: Provided, however, That the authority may also expend loan proceeds for any expansion to any existing regional jail or any expansion to a regional jail under construction upon the effective date of this section.
(d) Loans made under this section for the projects specified in subsection (b) of this section and in subsection (d), section eight, article six, chapter five of this code, shall be repaid in annual payments of not less than twelve million dollars per year by appropriation of the Legislature to the board. The amount transferred for loans under subsection (a) or (b) of this section shall not exceed that amount which the board determines is reasonable given the cash flow needs of the consolidated fund. The board shall make transfers for loans first for the project specified in subsection (d), section eight, article six, chapter five of this code, second for the projects specified in subsection (b) of this section and third for projects specified in subsection (b), section eight, article six, chapter five of this code, which are in imminent danger of default in payment. The board shall take the steps necessary to increase the liquidity of the consolidated fund over a period of the next five years to allow for the loans provided in this section without increasing the risk of loss in the consolidated fund.
Acts, 2010 Reg. Sess., Ch. 32.
(1) That the supreme court of appeals has determined and ordered that the constitution of this state imposes a duty on behalf of the state to make significant improvements in the jail and correctional facility system, including the duty to make capital improvements to facilities and to pay for the cost of those improvements;
(2) That construction of capital improvements requires that the cost of the facilities be financed over time; that capital improvements cannot be funded out of the current year appropriations of the Legislature; and that section fifty-one, article six of the constitution prohibits the Legislature amending the budget bill so as to create a deficit;
(3) That while the supreme court of appeals is empowered to interpret the laws, including the constitution of the state, section one, article ten of the constitution grants to the Legislature the power of taxation; section fifty-one, article six of the constitution grants to the Legislature the power of appropriation; and section one, article five of the constitution prohibits any branch of government from exercising powers properly belonging to another;
(4) That the enacting of new taxes, or the diversion of revenues from other essential departments and functions of government, in order to support capital improvements in jails and correctional facilities, is not in the interests of the people of the state represented in the Legislature, and is specifically rejected by the Legislature in its exercise of its legitimate constitutional powers;
(5) That the decision of the supreme court of appeals, imposing a duty on the state to construct and pay for capital improvements to jails and correctional facilities arising out of the Bill of Rights of the United States constitution declared ratified in the year one thousand seven hundred ninety-one, and the state constitution of the year one thousand eight hundred sixty-three, constitutes a prior liability of the state within the meaning of section four, article ten of the constitution and an exception to the constitutional limitation on contracting state debt;
(6) That the construction of capital improvements of jail and correctional facilities may be funded through funds available for investment through the West Virginia investment management board, invested in such a manner as to be assured as high a rate of return as would be earned if these funds were otherwise invested, and repaid by the state as provided in this article.
(b) The investment management board shall upon request of the regional jail and correctional facility authority transfer moneys as an investment, from funds available for investment from the public employees retirement system, to the regional jail and correctional facility authority. The amount transferred may not exceed one hundred fifty million dollars in the aggregate and shall be used for the purposes of financing construction of regional jails, correctional facilities, juvenile detention facilities, juvenile correctional facilities, or extensions, renovations, improvements or additions thereto, or for the replacement or renovation of existing facilities. If the board has loaned money to the state building commission under subsection (b), section nineteen of this article, the total amount loaned shall be repaid to the board from funds made available under the investment made pursuant to this section. Prior to the expenditure of any of the funds, the regional jail and correctional facility authority shall certify to the joint committee on government and finance a list of projects that are to be funded from the invested funds. This certified list may not thereafter be altered or amended other than by legislative enactment. Funds shall be invested with the regional jail and correctional facility authority as requested by the regional jail and correctional facility authority. The money invested shall earn a return at a rate equal to the annualized rate of return earned by the core fixed-income portfolio of the public employees retirement system over the previous five years, plus one tenth of one percent: Provided, That in all events this rate of return may not be less than five percent per annum. The monthly rate of return shall be calculated every quarter. The manner and timing of the investment shall be determined by the board. The total of the amounts invested may not exceed a total of one hundred fifty million dollars during fiscal year one thousand nine hundred ninety-eight, and fiscal year one thousand nine hundred ninety-nine, cumulatively. The authority to make the investment authorized by this section expires on the thirtieth day of June, one thousand nine hundred ninety-nine.
(c) There is created in the state treasury a regional jail and correctional facility investment fund dedicated to the payment of investment earnings and the return of capital invested under this section. The treasurer shall administer the fund. The fund is an interest-bearing account with interest earned credited to and deposited back into the fund. The fund consists of amounts required to be deposited by section fourteen, article three, chapter thirty-three of this code.
(d) The treasurer shall, monthly, transfer amounts from the regional jail and correctional facility investment fund to the board that are sufficient to allow investment earnings to be paid and the capital invested returned in substantially equal amounts by the thirty-first day of August, two thousand twenty-three: Provided, That the amount of investment earnings paid and the capital invested returned during the fiscal year beginning the first day of July, one thousand nine hundred ninety-eight, may not exceed ten million dollars. Payment representing investment earnings and the return of capital invested shall begin six months from the date the initial funds are invested, or by the tenth day of January, one thousand nine hundred ninety-nine, whichever is later.
(e) The board shall calculate the amount of the projected annual investment earnings to be paid and the capital invested to be returned and certify the amount to the treasurer on the first day of December of each year, until all investment earnings are paid and the total capital invested is returned. (f) As a condition precedent to the transfer and investment of moneys by the investment management board pursuant to subsection (b) of this section, either the investment management board or the regional jail and correctional authority shall have first caused a judicial determination to be made by an appropriate action initiated in the West Virginia supreme court of appeals regarding the transfer of moneys by the investment management board to the regional jail and correctional facility authority as an investment from funds available for investment from the public employees retirement system, and to otherwise determine the constitutionality of the provisions of Enrolled House Bill 4702, as enacted by the Legislature in the year one thousand nine hundred ninety-eight. This judicial determination shall be brought as soon as practicable, but not later than thirty days following the effective date of the amendments to this section made by the Legislature in the year one thousand nine hundred ninety-eight.
(g) The Legislature recognizes the fiduciary liability and responsibility imposed on the board by this article and by article six, chapter forty-four of this code. The board, its trustees and employees, have no liability, either personally or corporately with respect to the investment provided for in this section and the loans made under section nineteen of this article, if the investment and loans are made in accordance with the respective provisions of this section and section nineteen of this article.
(h) The regional jail and correctional facility authority shall expend the funds invested under the provisions of this section to proceed with the projects identified pursuant to subsection (b) of this section.
(i) The regional jail and correctional facility authority may return the total remaining capital invested upon thirty days written notice to the board and at the time of such return shall pay the investment earnings accrued to the return date.
This article shall be known and may be cited as "The Debt Management Act of 1991".
(b) The Legislature hereby finds:
(1) The credit rating and acceptance of bonds, notes, certificates of participation and other securities and indebtedness of the state and its spending units have been unstable as a result of the instability in traditional national and international markets of goods and services produced by the citizens of the state.
(2) In order to finance essential capital projects for the benefit of the citizens of the state at the lowest possible cost, the state must maintain high levels of acceptance of the indebtedness of the state and its spending units in the financial markets.
(3) In order to attain these goals, authorization of state debt must be based on the ability of the state to meet its total debt service requirements, in light of other uses of its fiscal resources.
(c) The Legislature hereby further finds that the public policies and responsibilities of the state as set forth in this article cannot be fully attained without the creation of a state division of debt management.
The division shall be under the control of a director to be appointed by the treasurer and who shall be qualified by reason of exceptional training and experience in the field of activities of his respective division and shall serve at the will and pleasure of the treasurer.
For the purpose of this article:
"Debt" means bonds, notes, certificates of participation, certificate transactions, capital leases and all other forms of securities and indebtedness.
"Division" means the division of debt management.
"State" means the state of West Virginia.
"Spending unit" means any of the state's agencies, boards, commissions, committees, authorities or other of its entities with the power to issue debt and secure such debt, and not including local political subdivisions of the state.
(1) Develop a long-term debt plan including criteria for the issuance of debt by the state and its spending units and the continuous evaluation of the current and projected debt of the state and its spending units.
(2) Evaluate cash flow projections relative to proposed and existing revenue bond issues.
(3) Act as liaison with the Legislature on all debt matters, including, but not limited to, new debt issues and the status of debt issued by the state and its spending units.
(4) Assist the state and its spending units regarding the issuance of debt if requested.
(5) Establish reporting requirements for the issuance of debt by the state and its spending units pursuant to the provisions of this article.
(6) Make and execute contracts and other instruments and pay the reasonable value of services or commodities rendered to the division pursuant to those contracts.
(7) Contract, cooperate or join with any one or more other governments or public agencies, or with any political subdivision of the state, or with the United States, to perform any administrative service, activity or undertaking which any such contracting party is authorized by law to perform and to charge for providing such services and expend any fees collected.
(8) Do all things necessary or convenient to effectuate the intent of this article and to carry out its powers and functions.
(9) Provide staff services to the debt capacity advisory division established in article six-b of this chapter.
(b) Not less than thirty days prior to a proposed offering of debt to be issued by a state spending unit, written notice of such proposed offering and the terms thereof shall be given to the division by such state spending unit in the form as the division may by regulation require. Within thirty days after closing, the terms shall be reported to the division in the form as the division may by regulation require.
(c) On or before the thirty-first day of January and the thirty-first day of July of each year, the treasurer shall prepare and issue a report of all debt of the state and its spending units and of all proposed debt issuances of which the treasurer has received notice and shall furnish a copy of such report to the governor, the president of the Senate, the speaker of the House of Delegates, the members of the joint committee on government and finance, the legislative auditor and upon request to any other legislative committee and any member of the Legislature. The report shall be kept available for inspection by any citizen of the state. The treasurer shall also prepare updated reports of all debt of the state and its spending units which shall be available for inspection at the office of the state treasurer on or before the thirty-first day of March and the thirtieth day of September of each year.
The division of debt management shall promulgate rules relating to reporting requirements and its duties under this article and the rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(a) "Debt" means bonds, notes, certificates of participation, certificate transactions, capital leases and all other forms of securities and indebtedness.
(b) "Debt impact statement" means a signed statement from the treasurer which shall include such information and be in such form, as determined by the division, for the Legislature or the governor to make an informed decision concerning the issuance of debt by the state or its spending units.
(c) "Division" means the debt capacity advisory division established in this article.
(d) "Net tax supported debt as a percentage of assessed valuation" means the net tax supported debt, as determined by the division, divided by the most recently available estimated assessed valuation of all taxable property in the state by the West Virginia department of tax and revenue.
(e) "Net tax supported debt as a percentage of personal income" means the net tax supported debt, as determined by the division, divided by the most recently available personal income figures for the state by the West Virginia bureau of employment programs.
(f) "Net tax supported debt per capita" means the state's net tax supported debt, as determined by the division, divided by the most recently available population estimate for the state by the United States department of commerce.
(g) "Spending unit" means any of the state's agencies, boards, commissions, committees, authorities, or other of its entities with the power to issue debt and secure such debt, but not including local political subdivisions of the state.
(h) "Tax supported debt" means: (1) All obligations of the state or any spending unit to which the state's full faith and credit is pledged to pay directly or by guarantee (provided that any such guaranteed obligations shall be included only to the extent any such obligations are in default); and (2) all obligations of the state or any agency or authority thereof extending beyond one year with respect to the lease, occupancy or acquisition of property which are incurred in connection with debt financing transactions, including, but not limited to, certificates of participation, and which are payable from taxes, fees, permits, licenses and fines imposed or approved by the Legislature.
Tax supported obligations do not include: (1) Any obligations of the West Virginia housing development fund, the economic development authority, the hospital finance authority, the West Virginia parkway authority, the West Virginia public energy authority, the West Virginia solid waste management board, and the West Virginia water development authority; (2) revenue anticipation notes or bonds of the state; or (3) any obligations to the extent that the debt service with respect thereto is reasonably expected to be offset, as determined by the division, by lease payments, user fees, federal grants or other payments from some source other than the general fund. Such payments shall be used expressly for the purpose of paying debt service.
(i) "Treasurer" means the treasurer of the state of West Virginia.
(a) Promulgate rules pursuant to article three, chapter twenty-nine-a of this code, for the management and conduct of its affairs;
(b) Annually review the size and condition of the state`s tax-supported debt and submit to the Governor and to the Legislature, on or before the fifteenth day of January of each year, an estimate of the maximum amount of new tax-supported debt that prudently may be authorized for the next fiscal year, together with a report explaining the basis for the estimate. The estimate shall be advisory and in no way restrict the Governor or the Legislature. In preparing its annual review and estimate, the Division shall, at a minimum, consider:
(1) The amount of net tax supported debt that, during the next fiscal year and annually for the following ten fiscal years: (A) Will be outstanding; and (B) has been authorized but not yet issued;
(2) Projected debt service requirements during the next fiscal year and annually for the following ten fiscal years based upon: (A) Existing outstanding debt; (B) previously authorized but unissued debt; and (C) projected bond authorizations;
(3) Any information available from the budget section of the Department of Administration in connection with anticipated capital expenditures projected for the next five fiscal years;
(4) The criteria that recognized bond rating agencies use to judge the quality of state bonds;
(5) Any other factor that the Division finds as relevant to: (A) The ability of the state to meet its projected debt service requirements for the next fiscal year; (B) the ability of the state to meet its projected debt service requirement for the next five fiscal years; and (C) any other factor affecting the marketability of the bond; and
(6) The effect of authorizations of new tax-supported debt on each of the considerations of this subsection.
(c) Conduct ongoing review of the amount and condition of bonds, notes and other security obligations of the state`s spending units: (1) Not secured by the full faith and credit of the state or for which the Legislature is not obligated to replenish reserve funds or make necessary debt service payments; (2) for which the state has a contingent or limited liability or for which the Legislature is permitted to replenish reserve funds or make necessary debt service payments if deficiencies occur. When appropriate, the Division shall recommend limits on the additional obligations to the Governor and to the Legislature. The recommendation is advisory and in no way restricts the Governor, the Legislature or the spending unit.
(d) The State Treasurer may review all proposed offerings of debt, as defined in this article, submitted to the Division of Debt Management, as provided in section six, article six-a of this chapter. The Division may also request any additional information which may be needed to issue an advisory opinion to the Governor, the Speaker of the House of Delegates and the President of the Senate as to the impact of the proposed offering on the state's net tax-supported debt outstanding and any other criteria which the State Treasurer feels may be relevant to the marketability of said offering and its impact on the state's credit rating. The advisory opinion shall in no way restrict the Governor, the Legislature or the spending unit.
(e) Do all things necessary or convenient to effectuate the intent of this article and to carry out its powers and functions.
(b) The Legislature finds and declares that the State Treasurer currently enters into agreements on behalf of the West Virginia Investment Management Board with political subdivisions and provides reporting services for participants in the Consolidated Fund.
(c) The Legislature finds and declares that the transfer of the Consolidated Fund to the West Virginia Board of Treasury Investments will allow for management of the fund within state government and will encourage better cash management of state moneys.
(d) The Legislature finds and declares that a public body corporate within state government with appropriate governance is the best means of assuring reasonable access to and prudent management and investment of the Consolidated Fund.
(e) The Legislature finds and declares that in accomplishing these purposes, the West Virginia Board of Treasury Investments is acting in all respects for the benefit of the citizens of the state in managing and investing the Consolidated Fund.
(f) The Legislature further finds and declares that it is in the best interests of the state, its citizens and the political subdivisions to create the West Virginia Board of Treasury Investments to manage and invest the Consolidated Fund to: (1) Provide focused investment services for the operating funds of the state and of its political subdivisions; (2) provide better management of all state funds within state government; and (3) allow the West Virginia Investment Management Board to focus on the long-term investment of the trust estates it manages pursuant to article six of this chapter.
(1) "Board" means the governing body for the West Virginia Board of Treasury Investments. References in this code to the entity investing the moneys of the Consolidated Fund, to the West Virginia Board of Investments, to the West Virginia Trust Fund or to the West Virginia Investment Management Board in connection with investing moneys in the Consolidated Fund means the Board as defined in this subdivision;
(2) "Consolidated fund" means the investment fund continued in section six of this article and transferred to the Board by the West Virginia Investment Management Board for Management and Investment;
(3) "Director" means any member serving on the Board;
(4) "Local government funds" means the moneys of a political subdivision, including policemen's and firemen's pension and relief funds, and volunteer fire department funds, transferred to the Board for deposit;
(5) "Participant" means any state government spending unit or political subdivision which transfers moneys to the Board for investment;
(6) "Political subdivision" means and includes a county, municipality or any agency, authority, board, county board of education, commission or instrumentality of a county or municipality and regional councils created pursuant to the provisions of section five, article twenty-five, chapter eight of this code;
(7) "Securities" means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
(8) "State funds" means all moneys of the state which may be lawfully invested except for the "school fund" established by section four, article XII of the State Constitution.
(b) Any appointment to the Board is effective immediately upon appointment by the Governor with respect to voting, constituting a quorum, receiving expenses and all other rights and privileges of the Director position. A trustee of the West Virginia Investment Management Board other than the Governor, State Treasurer or State Auditor is not eligible to serve as a Director of the Board.
(c) The Board shall consist of five members, as follows:
(1) The Governor, the State Treasurer and the State Auditor or their designees. They shall serve by virtue of their offices and are not entitled to compensation under the provisions of this article. The Governor, State Treasurer and State Auditor or their designees are subject to all duties, responsibilities and requirements of the provisions of this article; and
(2) Two persons appointed by the Governor subject to the advice and consent of the Senate.
(d) Of the two persons appointed by the Governor, one shall be a certified public accountant with experience in finance, investing and management, and one shall be an attorney with experience in finance, investing and management.
(e)(1) Initial appointment of the appointed directors shall be for the following terms:
(A) One member shall be appointed for a term ending the thirtieth day of June, two thousand seven; and
(B) One member shall be appointed for a term ending the thirtieth day of June, two thousand nine.
(2) Except for appointments to fill vacancies, each subsequent appointment shall be for the term ending the thirtieth day of June of the fourth year following the year the preceding term expired. A Director may be reappointed. In the event a vacancy occurs it shall be filled by appointment for the unexpired term. A Director whose term has expired shall continue in office until a successor has been duly appointed and qualified. No appointed member of the Board may be removed from office by the Governor except for official misconduct, incompetency, neglect of duty, gross negligence, misfeasance or gross immorality.
(f) All directors shall receive reasonable and necessary expenses actually incurred in discharging director's duties pursuant to this article.
(g) The Board shall hold quarterly meetings. Board bylaws may provide for calling and holding additional meetings. Representatives of participants and members of the public may attend any meeting held by the Board, except during those meetings or part of meetings closed by the Board as permitted by law. Attendees shall observe standards of decorum established by board policy.
(h) The Board shall annually adopt a fee schedule and a budget reflecting fee structures for the year.
(i) The Board chairman may appoint committees as needed, including, but not limited to, an investment policies committee to discuss drafting, reviewing or modifying written investment policies. Each committee shall seek input from participants before reporting its recommendations to the Board. The Board may meet with any or all committees during any of its meetings.
(j) Any meeting of the Board may be closed upon adoption of a motion by any Director when necessary to preserve the attorney-client privilege, to protect the privacy interests of individuals, to review personnel matters or to maintain confidentiality when confidentiality is in the best interest of the participants.
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments using the policies and procedures of the State Treasurer's Office;
(4) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
(5) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;
(6) Notwithstanding any other provision of law to the contrary, specifically article three, chapter five-a of this code, retain and contract with legal, accounting, financial and investment managers, advisors and consultants;
(7) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or otherwise dispose of securities and invest funds in investments authorized by this article;
(8) Maintain accounts with banks, securities dealers and financial institutions both within and outside this state;
(9) Engage in financial transactions whereby securities are purchased by the Board under an agreement providing for the resale of the securities to the original seller at a stated price;
(10) Engage in financial transactions whereby securities held by the Board are sold under an agreement providing for the repurchase of the securities by the Board at a stated price;
(11) Consolidate and manage moneys, securities and other assets of the consolidated fund and accounts of the state and the moneys of political subdivisions which may be made available to it under the provisions of this article;
(12) Abide by agreements entered into by the State Treasurer with political subdivisions of the state for investment of moneys of the political subdivisions by the Board;
(13) Charge and collect administrative fees from participants, including political subdivisions, for its services;
(14) Exercise all powers generally granted to and exercised by the holders of investment securities with respect to management of the investment securities;
(15) Use any contract or agreement of the Investment Management Board or the State Treasurer's Office and enter into its own contracts or agreements, including, without limitation entering into a contract or agreement with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities held by the Board and with any investment manager and investment advisor needed;
(16) Make, and from time to time, amend and repeal bylaws, rules and procedures not inconsistent with the provisions of this article;
(17) Hire its own employees, consultants, managers and advisors as it considers necessary and fix their compensation and prescribe their duties;
(18) Develop, implement and maintain its own investment accounts;
(19) Offer assistance and seminars to spending units and to political subdivisions;
(20) Upon request of the State Treasurer, transmit funds for deposit to the State Treasury to meet the daily obligations of state government; and
(21) Establish one or more investment funds, pools or participant accounts within the consolidated fund for the purpose of investing the moneys and assets for which it is director, trustee, custodian or otherwise authorized to invest pursuant to this article. Interests in each fund, pool or participant account are designated as units and the Board shall adopt industry standard accounting procedures to determine the unit value of each fund, pool or participant account. The securities in each investment fund, pool or participant account are the property of the Board and each fund, pool or participant account is considered an investment pool, investment fund or investment participant account.
(b) Each spending unit authorized to invest moneys shall unless prohibited by law, request the State Treasurer to invest its moneys. Based upon spending unit representations, the State Treasurer shall send the moneys to the West Virginia Board of Treasury Investments or to the Investment Management Board for investment.
(c) Each political subdivision of this state through its treasurer or equivalent financial officer may enter into agreements with the State Treasurer for the investment of moneys of the political subdivision. Any political subdivision may enter into an agreement with the state spending unit from which it receives moneys to allow the board to invest the moneys.
(d) Moneys held in the various funds and accounts administered by the board are invested as permitted by this article and subject to the restrictions contained in this article.
(e) The State Treasurer shall maintain records of the deposits and withdrawals of each participant and the performance of the various funds, pools and accounts. The board shall report the earnings on the funds, pools, and accounts under management to the State Treasurer at the times determined by the State Treasurer.
(f) The board shall establish policies for the administration of the various funds, pools and accounts authorized by this article as it determines necessary. The policies may specify the minimum amounts and timing of deposits and withdrawals and any other matters authorized by the board.
(g) Notwithstanding any provision of this code to the contrary, the funds, pools and securities maintained or invested in by the board in accordance with this article are authorized investments for all local government funds.
(b) The State Treasurer is the chairperson of the board. The board shall elect a vice chairperson. Annually, the directors shall elect a secretary to keep a record of the proceedings of the board and provide any other duties required by the board. The board may elect a person who is not a member of the board as secretary.
(c) The board may use the staff of the State Treasurer, employ personnel and contract with any person or entity needed to perform the tasks related to operating the Consolidated Fund.
(d) The board shall retain an internal auditor to report directly to the board and shall fix his or her compensation. As a minimum qualification, the internal auditor shall be a certified public accountant with at least three years' experience as an auditor. The internal auditor shall develop an internal audit plan, with board approval, for the testing of procedures, internal controls and the security of transactions.
(e) The board may retain one employee with a chartered financial analyst designation or an employee who is a certified treasury manager.
(f) Each director shall give a separate fiduciary or surety bond from a surety company qualified to do business within this state in a penalty amount of one million dollars for the faithful performance of his or her duties as a director. The board shall purchase a blanket bond for the faithful performance of its duties in the amount of fifty million dollars or in an amount equivalent to one percent of the assets under management, whichever is greater. The amount of the blanket bond is in addition to the one million dollar individual bond required of each director by the provisions of this section. The board may require a fiduciary or surety bond from a surety company qualified to do business in this state for any person who has charge of, or access to, any securities, funds or other moneys held by the board and the amount of the fiduciary or surety bond are fixed by the board. The premiums payable on all fiduciary or surety bonds are expenses of the board.
(g) The directors, employees of the board and employees of the State Treasurer performing work for or on behalf of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That the directors and employees of the board are liable for acts of misfeasance or gross negligence.
(h) The board is exempt from the provisions of article three, chapter five-a, and sections seven and eleven, article three, chapter twelve of this code. However, the board is subject to the purchasing policies and procedures of the State Treasurer's Office.
(1) Purchase, retain, hold, transfer and exchange and sell, at public or private sale, the whole or any part of the fund or pools upon any terms and conditions it considers advisable;
(2) Invest and reinvest the fund and pools or any part thereof in fixed income securities as provided in this article;
(3) Carry the securities and other property held in trust either in the name of the board or in the name of its nominee;
(4) Vote, in person or by proxy, all securities held; join in or dissent from and oppose the reorganization, recapitalization, consolidation, merger, liquidation or sale of corporations or property; exchange securities for other securities issued in connection with or resulting from any transaction; pay any assessment or expense which the board considers advisable for the protection of its interest as holder of the securities; exercise any option appurtenant to any securities for the conversion of any securities into other securities; and exercise or sell any rights issued upon or with respect to the securities of any corporation, all upon terms the board considers advisable;
(5) Prosecute, defend, compromise, arbitrate or otherwise adjust or settle claims in favor of or against the board or a director;
(6) Employ and pay from the fund any investment advisors, brokers, counsel, managers and any other assistants and agents the board considers advisable;
(7) Develop, implement and modify an asset allocation plan and investment policy for each fund or pool; and
(8) Create a local government investment pool, a program to purchase certificates of deposit from West Virginia financial institutions that are state depositories and any funds, pools or participant accounts needed.
(b) All income and earnings are free from anticipation, alienation, assignment or pledge by, and free from attachment, execution, appropriation or control by or on behalf of, any and all creditors of any beneficiary by any proceeding at law, in equity, in bankruptcy or insolvency.
(c) The board shall render an annual accounting not more than one hundred twenty days following the close of the fiscal year.
(b) The board shall adopt, review, modify or cancel the investment policy of each fund or pool created at each annual board meeting. For each participant directed account authorized by the State Treasurer, staff of the board shall develop an investment policy for the account and create the requested account. The board shall review all existing participant directed accounts and investment policies at its annual meeting for modification.
(c) The board shall consider the following when adopting, reviewing, modifying or canceling investment policies:
(1) Preservation of capital;
(2) Risk tolerance;
(3) Credit standards;
(4) Diversification;
(5) Rate of return;
(6) Stability and turnover;
(7) Liquidity;
(8) Reasonable costs and fees;
(9) Permissible investments;
(10) Maturity ranges;
(11) Internal controls;
(12) Safekeeping and custody;
(13) Valuation methodologies;
(14) Calculation of earnings and yields;
(15) Performance benchmarks and evaluation; and
(16) Reporting.
(d) No security may be purchased by the board unless the type of security is on a list approved at a board meeting. The board shall review the list at its annual meeting.
(e) Notwithstanding the restrictions which are otherwise provided by law with respect to the investment of funds, the board and all participants, now and in the future, may invest funds in these securities:
(1) Obligations of, or obligations that are insured as to principal and interest by, the United States of America or any agency or corporation thereof and obligations and securities of the United States sponsored enterprises, including, without limitation:
(i) United States Treasury;
(ii) Export-Import Bank of the United States;
(iii) Farmers Home Administration;
(iv) Federal Farm Credit Banks;
(v) Federal Home Loan Banks;
(vi) Federal Home Loan Mortgage Corporation;
(vii) Federal Land Banks;
(viii) Government National Mortgage Association;
(ix) Merchant Marine bonds; and
(x) Tennessee Valley Authority Obligations;
(2) Obligations of the Federal National Mortgage Association;
(3) Commercial paper with one of the two highest commercial paper credit ratings by a nationally recognized investment rating firm;
(4) Corporate debt rated in one of the six highest rating categories by a nationally recognized rating agency;
(5) State and local government, or any instrumentality or agency thereof, securities with one of the three highest ratings by a nationally recognized rating agency;
(6) Repurchase agreements involving the purchase of United States Treasury securities and repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities;
(7) Reverse repurchase agreements involving the purchase of United States Treasury securities and reverse repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities;
(8) Asset-backed securities rated in the highest category by a nationally recognized rating agency;
(9) Certificates of deposit; and
(10) Investments in accordance with the Linked Deposit Program, a program using financial institutions in West Virginia to obtain certificates of deposit, loans approved by the Legislature and any other programs authorized by the Legislature.
(f) In addition to the restrictions and conditions contained in this section:
(1) At no time shall more than seventy-five percent of the Consolidated Fund be invested in any bond, note, debenture, commercial paper or other evidence of indebtedness of any private corporation or association;
(2) At no time shall more than five percent of the Consolidated Fund be invested in securities issued by a single private corporation or association; and
(3) At no time shall less than fifteen percent of the Consolidated Fund be invested in any direct obligation of or obligation guaranteed as to the payment of both principal and interest by the United States of America.
(b) The West Virginia Board of Treasury Investments shall make available, subject to a liquidity determination, in the form of a revolving loan, up to one hundred seventy-five million dollars from the Consolidated Fund to loan the West Virginia Economic Development Authority for business or industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code and to consolidate existing loans authorized to be made to the West Virginia Economic Development Authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one of this code which authorizes a one hundred seventy-five million dollar revolving loan and article eighteen-b, chapter thirty-one of this code which authorizes a fifty million dollar investment pool: Provided, That the West Virginia Economic Development Authority may not loan more than fifteen million dollars for any one business or industrial development project. The revolving loan authorized by this subsection shall be secured by one note at a variable interest rate equal to the twelve-month average of the board's yield on its cash liquidity pool. The rate shall be set on the first day of July and adjusted annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly payments made by the West Virginia Economic Development Authority to the Board shall be calculated on a one hundred twenty-month amortization. The revolving loan is secured by a security interest that pledges and assigns the cash proceeds of collateral from all loans under this revolving loan pool. The West Virginia Economic Development Authority may also pledge as collateral certain revenue streams from other revolving loan pools which source of funds does not originate from federal sources or from the Board.
(c) The outstanding principal balance of the revolving loan from the Board to the West Virginia Economic Development Authority may at no time exceed one hundred three percent of the aggregate outstanding principal balance of the business and industrial loans from the West Virginia Economic Development Authority to economic development projects funded from this revolving loan pool. The independent audit of the West Virginia Economic Development Authority financial records shall annually certify that one hundred three percent requirement.
(d) The interest rates and maturity dates on the loans made by the West Virginia Economic Development Authority for business and industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code shall be at competitive rates and maturities as determined by the West Virginia Economic Development Authority Board.
(e) Any and all outstanding loans made by the West Virginia Board of Treasury Investments, or any predecessor entity, to the West Virginia Economic Development Authority are refundable by proceeds of the revolving loan contained in this section and the Board shall make no loans to the West Virginia Economic Development Authority pursuant to section twenty, article fifteen, chapter thirty-one of this code or article eighteen-b of said chapter.
(f) The Directors of the Board shall bear no fiduciary responsibility with regard to any of the loans contemplated in this section.
(g) Subject to cash availability, the Board shall make available to the West Virginia Economic Development Authority, from the Consolidated Fund, a nonresource loan in an amount up to twenty-five million dollars, for the purpose of the West Virginia Economic Development Authority making a loan or loans from time to time to the West Virginia Enterprise Advancement Corporation, an affiliated nonprofit corporation of the West Virginia Economic Development Authority. The respective loans authorized by this subjection by the Board to the West Virginia Economic Development Authority to the West Virginia Enterprise Advancement Corporation shall each be evidenced by one note and shall each bear interest at the rate of three percent per annum. The proceeds of any and all loans made by the West Virginia Economic Development Authority to the West Virginia Enterprise Advancement Corporation pursuant to this subsection shall be invested by the West Virginia Enterprise Corporation in the West Virginia Enterprise Capital Fund, LLC, the manager of which is the West Virginia Enterprise Advancement Corporation. The loan to West Virginia Economic Development Authority authorized by this subsection shall be nonrevolving, and advances under the loan shall be made at times and in amounts requested or directed by the West Virginia Economic Development Authority, upon reasonable notice to the Board. The loan authorized by this subsection is not subject to or included in the limitations set forth in subsection (b) of this section with respect to the fifteen million-dollar limitation for any one business or industrial development project and limitation of one hundred three percent of outstanding loans, and may not be included in the revolving fund loan principal balance for purposes of calculating the loan amortization in subsection (b) of this section. The loan authorized by this subsection to the West Virginia Economic Development Authority shall be classified by the Board as a long-term fixed income investment, shall bear interest on the outstanding principal balance of the loan at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, and the principal of which shall be repaid no later than the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the thirtieth day of June of each year. The annual installments, which need not be equal shall commence no later than the thirtieth day of June, two thousand five, in annual principal amounts agreed upon between the Board and the West Virginia Economic Development Authority. The loan authorized by this subsection shall be nonrecourse and shall be payable by the West Virginia Economic Development Authority solely from amounts or returns received by the West Virginia Economic Development Authority in respect of the loan authorized by this subsection to the West Virginia Enterprise Advancement Corporation, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the Board shall have a security interest to secure repayment of the loan to the West Virginia Economic Development Authority authorized by this subsection. Any and all loans from the West Virginia Enterprise Advancement Corporation made pursuant to this subsection shall also bear interest on the outstanding principal balance of the loan at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, shall be nonrecourse and shall be payable by the West Virginia Enterprise Advancement Corporation solely from amounts of returns received by the West Virginia Enterprise Advancement Corporation in respect to its investment in the West Virginia Enterprise Capital Fund, LLC, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which that Board shall have a security interest to secure repayment of the loan to the West Virginia Economic Development Authority authorized by this subsection. In the event the amounts or returns received by the West Virginia Enterprise Corporation in respect to its investment in the West Virginia Enterprise Capital Fund, LLC, are not adequate to pay when due the principal or interest installments, or both, with respect to the loan authorized by this subsection by the Board to the West Virginia Economic Development Authority, the principal or interest, or both, as the case may be, due on the loan made to the West Virginia Economic Development Authority pursuant to this subsection shall be deferred and any and all past-due principal and interest payments shall promptly be paid to the fullest extent possible upon receipt by the West Virginia Enterprise Advancement Corporation of moneys in respect to its investments in the West Virginia Enterprise Capital Fund, LLC. The Directors or the Board shall bear no fiduciary responsibility as provided in section thirteen of this article with regard to the loan authorized by this subsection.
(1) The directors shall diversify fund investment so as to minimize the risk of large losses unless, under the circumstances, it is clearly prudent not to do so;
(2) The directors shall defray reasonable expenses of investing and managing the Consolidated Fund by charging fees as provided in this article; and
(3) The directors shall discharge their duties in accordance with the documents and instruments consistent with the provisions of this article.
(b) The duties of the directors apply only with respect to those assets deposited with or otherwise held by the Board.
(b) The Board shall produce monthly financial statements for the assets managed by the Board and send them to each member of the Board and provide copies as reasonably requested.
(c) Each quarter the Board shall deliver a report for the prior quarter to the Council of Finance and Administration.
(d) The Board shall contract with an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section for an annual audit of the reported returns of the assets managed by the Board.
(e) The Board shall prepare an annual report detailing all fees charged by the Board under this article. The Board shall furnish copies of the report to the Legislative Joint Committee on Government and Finance.
(f) Unless specifically otherwise stated, copies of the reports required in this section shall be furnished to the Board, Governor, President of the Senate, Speaker of the House of Delegates, Council of Finance and Administration, Legislative Librarian and upon request to any legislator, legislative committee, financial institution, member of the media and the public.
(g) The Board shall provide any other information requested in writing by the Council of Finance and Administration or any member of the Legislature.
(b) The Board shall prepare annually, or more frequently if determined necessary by the Board, a report of its operations and the performance of the various funds, pools and participant accounts administered by it. The Board shall furnish copies of the report to each participant, the President of the Senate, Speaker of the House of Delegates, Legislative Auditor, and upon request to any legislative committee, any legislator, any banking institution or state or federal savings and loan association in this state and any member of the news media. The Board shall also keep the reports available for inspection by any citizen of this state.
(b) The Board shall continue the work of the Investment Management Board in taking the steps necessary to increase the liquidity of the Consolidated Fund to allow for any loans authorized by the Legislature without increasing the risk of loss.
(b) There is created in the State Treasury a special account designated the Board of Treasury Investments Investment Fund for use in receiving funds for investment, disbursing funds from investments and processing investment transactions.
(c) All fees dedicated, identified or readily identifiable to an entity, fund, pool or participant account shall be charged to that entity, fund, pool or participant account and all other fees shall be charged as a percentage of assets under management. At its annual meeting, the Board shall adopt a fee schedule and a budget reflecting fee schedules.
Acts, 2010 Reg. Sess., Ch. 32.
(b) There is created the West Virginia Enterprise Resource Planning Board, whose purpose is to develop, implement and manage the Enterprise Resource Planning System.
(c) The board consists of the Governor, Auditor and the
Treasurer, who serve by virtue of their offices and are not
entitled to compensation under the provisions of this article.
(1) Adopt and use a common seal and alter it at pleasure;
(2) Sue and be sued;
(3) Enter into contracts and execute and deliver instruments;
(4) Acquire by purchase, gift or otherwise, hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
(5) Accept and receive gifts, grants and other moneys from any source;
(6) Promulgate and enforce by-laws and rules for the management and conduct of its affairs;
(7) Propose legislative rules, including emergency rules, in accordance with article three, chapter twenty-nine-a of this code to establish a user fee for the maintenance of the Enterprise Resource System;
(8) Contract with and retain legal, accounting, financial and information technology managers, advisors and consultants;
(9) Delegate to the committee any and all duties of the board deemed necessary and convenient to effectuate the intent of this article;
(10) Review and ratify or overrule any decision of the steering committee;
(11) Review written appeals submitted by the steering committee chairman at the request of a committee member; and
(12) Do all things necessary or convenient to implement and
operate the board and carry out the purposes of this article.
(c) Decisions of the board require unanimous consent of the members.
(d) The board may use the staff, policies and procedures of the State Auditor, employ personnel and contract with any person or entity needed to perform the tasks related to the development, management and operation of the Enterprise Resource Planning System.
(e) The board shall hold meetings at least quarterly. Board by-laws may provide for additional meetings.
(f) All three voting members must be present to constitute a quorum of any meeting.
(g) Meetings of the board are subject to the provisions of article nine-a, chapter six of this code.
(h) The board may convene in executive session, upon adoption
of a proper motion by a board member, when necessary to preserve
the attorney-client privilege, to protect the privacy interests of
individuals, to review personnel matters, to maintain
confidentiality when confidentiality is in the best interest of the participants, or as otherwise provided by law.
(b) The steering committee shall annually elect a chairperson to chair the committee.
(c) A steering committee member may appeal any action of the committee to the board by submitting a written request for board review to the steering committee chairperson within ten days of the disputed committee action. The committee chairperson shall forward the appeal to the board. The board shall review appeals at the next regularly scheduled board meeting and shall ratify or overturn the decision of the board in writing. No disputed action of the committee may proceed, if appealed to the board, until ratified or overturned by the board.
(d) The steering committee shall consist of sixteen members,
as follows:
(1) The Secretary of the Department of Administration, the
Secretary of Revenue, the Secretary of Transportation, and the
Secretary of Health and Human Resources. They shall serve by virtue
of their offices, are not entitled to compensation under the
provisions of this article, and are subject to all duties,
responsibilities and requirements of the provisions of this
article;
(2) Five persons appointed by the Governor, three of whom will
be representatives of institutions of Higher Education;
(3) Two persons appointed by the State Auditor;
(4) Two persons appointed by the State Treasurer;
(5) A member of the Senate appointed by the President of the
Senate, who shall be a non-voting member; and
(6) A member of the House of Delegates appointed by the
Speaker of the House, who shall be a non-voting member;
(7) A member who represents public employees, who shall be a
non-voting member.
(e) A member may appoint a designee to serve on his or her
behalf.
(f) A member may serve until his or her appointment is revoked
or until his or her successor is appointed and qualified.
(g) Members are entitled to reasonable and necessary expenses
actually incurred in discharging committee duties pursuant to this
article.
This article, which may be cited as the "Jobs Investment Trust
Act", is enacted to create a jobs investment trust to be used for
the development, promotion and expansion of West Virginia's economy
and to provide opportunities to businesses and college and
university students to develop and implement plans for innovative
projects and investment opportunity.
(b) The Legislature further finds that:
(1) The availability of financial assistance through the
creation of the jobs investment trust will promote economic
development in the state and will serve the public purposes of the
state;
(2) The public policy of the state will be served through
financing projects, extending loans, providing financing or credit
for working capital, creating innovative investment plans and
options, and providing equity financing or the refinancing of
existing debt of an enterprise;
(3) It is in the public interest, in order to address the
needs of the business community and the citizens of the state, that
a public body corporate be created with full power to accept
grants, gifts and appropriations; to generate revenues to furnish
money and credit to approved businesses or enterprises; to promote
the establishment of new and innovative projects; and to upgrade,
expand and retain existing projects; and
(4) Fundamental changes are occurring in national and
international markets that increase the need for debt financing,
equity capital and near-equity capital for emerging, expanding and
restructuring business opportunities in the state.
(c) The Legislature further finds:
(1) That due to the creation of the jobs investment trust,
moneys will be available for venture capital in this state;
(2) That the implementation of this innovative program may
supplant the need for the state to otherwise assist private venture
capital concerns through other tax credits;
(3) That due to the availability of venture capital funds
through this program the granting of venture capital company
credits under the capital company act should be reduced for three
fiscal years pending the full implementation of the jobs investment
trust program;
(4) That due to this reduction in the certification of tax
credits, additional general revenue may become available for new
economic development programs;
(5) These economic development programs may be funded from
general revenue in an amount appropriate to effectuate the purposes
of these programs; and
(6) Due to the foregoing findings there shall be an annual
line item appropriation, in an amount determined by the
Legislature, to the West Virginia development office for a matching
grant program for regional economic development corporations or authorities.
(a) "Board" means the jobs investment trust board established
pursuant to section four of this article.
(b) "Eligible business" means any business, including, but not
limited to, a business licensed or seeking licensure by the small
business administration as a small business investment company
under the small business investment act, which is qualified to do
business in West Virginia and is in good standing with all
applicable laws affecting the conduct of such business.
(c) "Nonincentive Tax Credits" means the nonincentive tax
credits issued by the state to the jobs investment trust board and
authorized for sale and transfer by the jobs investment trust board
pursuant to section eight-a of this article.
(d) "Securities" means all bonds, notes, stocks, units of
ownership, debentures or any other form of negotiable or
nonnegotiable evidence of indebtedness or ownership.
(b) The board consists of thirteen members, five of whom serve
by virtue of their respective positions. These five are the
Governor or designee; president of West Virginia University or
designee; the president of Marshall University or designee; the
chancellor of the higher education policy commission or designee;
and the executive director of the West Virginia housing development
fund. One member is appointed by the Governor from a list of two
names submitted by the board of directors of the Housing
Development Fund. One member is appointed by the Governor from a
list of two names submitted by the commissioner of the division of
tourism. The other six members are appointed from the general
public by the Governor. Of the general public members appointed by
the Governor, one is an attorney with experience in finance and
investment matters; one is a certified public accountant; one is a
representative of labor; one is experienced or involved in
innovative business development; and two are present or past
executive officers of companies listed on a major stock exchange or
large privately held companies. All appointments made pursuant to
the provisions of this article are by and with the advice and
consent of the Senate.
(c) A vacancy on the board is filled by appointment by the
Governor in the same manner as the original appointment. A member
appointed to fill a vacancy serves for the remainder of the
unexpired term.
(d) The Governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and fill the vacancy as provided in other cases of vacancy.
(e) The Governor or designee serves as the chair. The board
annually elects one of its public members as vice chair and
appoints a secretary to keep records of its proceedings who need
not be a member of the board.
(f) Seven members of the board is a quorum. Action may not be
taken by the board except upon the affirmative vote of at least a
majority of those members present or participating by any other
means as described in subsection (g) of this section, but in any
event not fewer than six of the members serving on the board.
(g) Members of the board may participate in a meeting of the
board by means of conference telephone or similar communication
equipment by means of which all persons participating in the
meeting can hear each other. Participation in a board meeting
pursuant to this subsection constitutes presence in person at the
meeting.
(h) The members of the board are not compensated for their
services as members of the board, but receive reasonable and
necessary expenses actually incurred in discharging their duties under this article in a manner consistent with guidelines of the
travel management office of the Department of Administration.
(i) The board meets on a quarterly basis or more often if
necessary.
(j) The Governor shall appoint a member for a four-year term.
Any member whose term has expired serves until a successor is duly
appointed and qualified. Any member is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of
Delegates, appointed by the Speaker of the House of Delegates, and
one member of the West Virginia Senate, appointed by the President
of the Senate, serve as advisory members of the Jobs Investment
Trust Board and, as advisory members, are ex officio, nonvoting
members.
(b) The board annually elects a secretary to keep a record of
the proceedings of the board, who need not be a member of the
board.
(c) The members and officers of the board are not liable
personally, either jointly or severally, for any debt or obligation
created by the board.
(d) The acts of the board are solely the acts of its
corporation and are not those of an agent of the state. A debt or
obligation of the board is not a debt or obligation of the state.
(e) Upon the affirmative vote of at least a majority of those members in attendance or participating by such other means as
described in subsection (g), section four of this article in a
meeting of the board, but in any event not fewer than six of the
members serving on the board, the board may approve any action to
be taken and authorize the executive director for and on behalf of
the board to execute and deliver all instruments, agreements or
other documents that are required or are reasonably necessary to
effectuate the decisions or acts of the board.
(f) The West Virginia Housing Development Fund shall provide
office space and staff support services for the director and the
board shall act as fiscal agent for the board and, as such, shall
provide accounting services for the board, invest all funds as
directed by the board, service all investment activities of the
board and shall make the disbursements of all funds as directed by
the board, for which the West Virginia Housing Development Fund
shall be reasonably compensated as determined by the board.
(g) The board and the executive director shall involve
students and faculty members of state institutions of higher
education in the board's activities in order to enhance the
opportunities at the institutions for learning and for
participation in the board's investment activities and in the
economic development of the state, whether in research, financial
analysis, management participation or in such other ways as the
board and the executive director may, in their discretion, find
appropriate.
(1)(i) Make loans to eligible businesses with or without
interest secured if and as required by the board; and (ii) acquire
ownership interests in eligible businesses. These investments may
be made in eligible businesses that stimulate economic growth and
provide or retain jobs in this state and shall be made only upon
the determination by the board that the investments are prudent and
meet the criteria established by the board;
(2) Accept appropriations, gifts, grants, bequests and devises
and use or dispose of them to carry out its corporate purposes;
(3) Make and execute contracts, releases, compromises,
agreements and other instruments necessary or convenient for the
exercise of its powers or to carry out its corporate purposes;
(4) Collect reasonable fees and charges in connection with
making and servicing loans, notes, bonds, obligations, commitments
and other evidences of indebtedness, in connection with making
equity investments and in connection with providing technical,
consultative and project assistance services;
(5) Sue and be sued;
(6) Make, amend and repeal bylaws and rules consistent with
the provisions of this article;
(7) Hire its own employees, who shall be employees of the
state of West Virginia for purposes of articles ten and sixteen,
chapter five of this code, and appoint officers and consultants and fix their compensation and prescribe their duties;
(8) Acquire, hold and dispose of real and personal property
for its corporate purposes;
(9) Enter into agreements or other transactions with any
federal or state agency, college or university, any person and any
domestic or foreign partnership, corporation, association or
organization;
(10) Acquire real and personal property, or an interest in
real or personal property, in its own name, by purchase or
foreclosure when acquisition is necessary or appropriate to protect
any loan in which the board has an interest; to sell, transfer and
convey any real or personal property to a buyer; and, in the event
a sale, transfer or conveyance cannot be effected with reasonable
promptness or at a reasonable price, to lease real or personal
property to a tenant;
(11) Purchase, sell, own, hold, negotiate, transfer or assign:
(i) Any mortgage, instrument, note, credit, debenture, guarantee,
bond or other negotiable instrument or obligation securing a loan,
or any part of a loan; (ii) any security or other instrument
evidencing ownership or indebtedness; or (iii) equity or other
ownership interest. An offering of one of these instruments shall
include the representation and qualification that the board is a
public body corporate managing a venture capital fund that includes
high-risk investments and that in any transfer, sale or assignment
of any interest, the transferee, purchaser or assignee accepts any risk without recourse to the jobs investment trust or to the state;
(12) Procure insurance against losses to its property in
amounts, and from insurers, as is prudent;
(13) Consent, when prudent, to the modification of the rate of
interest, time of maturity, time of payment of installments of
principal or interest or any other terms of the investment, loan,
contract or agreement in which the board is a party;
(14) Establish training and educational programs to further
the purposes of this article;
(15) File its own travel rules;
(16) Borrow money to carry out its corporate purpose in
principal amounts and upon terms as are necessary to provide
sufficient funds for achieving its corporate purpose;
(17) Take options in or warrants for, subscribe to, acquire,
purchase, own, hold, transfer, sell, vote, employ, mortgage,
pledge, assign, pool or syndicate: (i) Any loans, notes, mortgages
or securities; (ii) debt instruments, ownership certificates or
other instruments evidencing loans or equity; or (iii) securities
or other ownership interests of or in domestic or foreign
corporations, associations, partnerships, limited partnerships,
limited liability partnerships, limited liability companies, joint
ventures or other private enterprise to foster economic growth,
jobs preservation and creation in the state of West Virginia and
all other acts that carry out the board's purpose;
(18) Contract with either Marshall university or West Virginia university, or both, for the purpose of retaining the services of,
and paying the reasonable cost of, services performed by the
institution for the board in order to effectuate the purposes of
this article;
(19) Enter into collaborative arrangements or contracts with
private venture capital companies when considered advisable by the
board;
(20) Provide equity financing for any eligible business that
will stimulate economic growth and provide or retain jobs in this
state and hold, transfer, sell, assign, pool or syndicate, or
participate in the syndication of, any loans, notes, mortgages,
securities, debt instruments or other instruments evidencing loans
or equity interest in furtherance of the board's corporate
purposes;
(21) Form partnerships, create subsidiaries or take all other
actions necessary to qualify as a small business investment company
under the United States Small Business Investment Act, PL 85-699,
as amended;
(22) Provide for staff payroll and make purchases in the same
manner as the housing development fund;
(23) Indemnify its members, directors, officers, employees and
agents relative to actions and proceedings to which they have been
made parties and make advances for expenses relative thereto and
purchase and maintain liability insurance on behalf of those
persons all to the same extent as authorized for West Virginia business corporations under present or future laws of the state
applicable to business corporations generally; and
(24) Contract for the provision of legal services by private
counsel and, notwithstanding the provisions of article three,
chapter five of this code, counsel may, but is not limited to,
represent the board in court, negotiate contracts and other
agreements on behalf of the board, render advice to the board on
any matter relating thereto, prepare contracts and other agreements
and provide any other legal services requested by the board.
Subject to the provisions of section nine of this article, the
board may invest in any eligible business: Provided,
That at the
time of the placement of the investment not more than twenty
percent of the board's total investment portfolio is invested in
one eligible business within any two-year period: Provided,
however,
That the board may invest in an eligible business up to an
additional twenty percent of the board's total investment
portfolio, or up to a total of two million dollars, whichever is
less. The additional investment must be in the form of a short- term debt investment to be repaid within twelve months of the
investment: Provided further,
That the board may extend said
twelve-month repayment term until the thirtieth day of September,
one thousand nine hundred ninety-four, and upon terms consistent
with the actions of other investors involved in similar investments
with the eligible business if the eligible business demonstrates to
the board: (i) That said business is progressing with a plan for
capital formation and business development; and (ii) that said
extension of the twelve-month period, and any other modification
thereto, will not substantially prejudice the position of the board
in relation to the other investors in, and creditors of, the
eligible business. The board shall report any extension of any
repayment term made prior to the thirty-first day of March, one
thousand nine hundred ninety-four, and approved by the board
pursuant to the provisions of this section, to the governor and to the Legislature's joint committee on government and finance within
twenty days of such approval: And provided further,
That the board
shall report to the governor and the joint committee on government
and finance of its intention to extend any repayment term at least
twenty days prior to the board approving any extension made on or
after the first day of April, one thousand nine hundred
ninety-four.
Effective the first day of July, one thousand nine hundred
ninety-two, the West Virginia housing development fund shall make
available for the use of the board ten million dollars as and when
requested in accordance with the provisions of section twenty-c,
article eighteen, chapter thirty-one of this code. The funds shall
be transferred to and held in a separate account at the housing
development fund for the trust until a disbursement of such funds
is directed by the board. No more than eight million dollars may
be invested in qualified investments in the fiscal year one
thousand nine hundred ninety-three.
(b) Without limiting the powers otherwise enumerated in this
article, the board may: (1) Sell and transfer portions of the
nonincentive tax credits created, issued and transferred to the
board pursuant to the provisions of this section to contracting
taxpayers and/or their assigns in return for the payments described in subsection (f) of this section; (2) issue or provide promissory
notes on loans made to the board having terms of up to ten years on
a zero-coupon basis or otherwise; (3) enter into put options or
similar commitment contracts with taxpayers that would be for terms
of up to ten years committing, at the board's option, to sell and
transfer to the contracting taxpayers or their assigns at the end
of the term and as soon after the term as is reasonable under the
circumstances portions of the nonincentive tax credits created,
issued and transferred to the board pursuant to this section; (4)
grant, transfer and assign the benefits of the put options or
similar commitment contracts as collateral to secure the board's
obligations pursuant to its promissory notes; (5) satisfy the
board's payment obligations under its promissory notes from assets
of the board, other than the benefits of the put options or similar
commitment contracts, then to effect a corresponding cancellation
of the board's related nonincentive tax credit commitment; and (6)
satisfy the board's payment obligations under its promissory notes
from the benefits of the put options or similar commitment
contracts, then to effect a corresponding sale and transfer of
nonincentive tax credits. The terms and conditions of the
promissory notes, put options or similar commitment contracts shall
be consistent with the purposes of this section, and approved by
board resolution, and may be different for separate transactions.
(c) Without limiting the powers otherwise enumerated in this
article and with regard to the new millennium fund, the board has and may exercise all powers necessary to further the purposes of
this section, including, but not limited to, the power to commit,
sell and transfer nonincentive tax credits up to the total amount
of thirty million dollars.
(d) The board may issue its promissory notes pursuant to this
section in amounts totaling no more than six million dollars in
each of the fiscal years ending in two thousand one, two thousand
two, two thousand three, two thousand four and two thousand five
and may issue its nonincentive tax credit commitments in amounts
totaling no more than six million dollars in each of the fiscal
years ending in two thousand one, two thousand two, two thousand
three, two thousand four and two thousand five. The board may
agree to sell and transfer, at its option, nonincentive tax credits
to taxpayers ten years after the date of its commitments and as
soon thereafter as it is reasonable under the circumstances.
(e) Prior to committing to the sale and transfer of any
nonincentive tax credits, the board shall first determine that:
(1) The new millennium fund moneys to be received in
relationship to the commitment shall be used for the development,
promotion and expansion of the economy of the state; and
(2) The existence and pledge of a put option or similar
commitment contract that is supported by the nonincentive tax
credits that are committed by the board is a material inducement to
the private or institutional lender transferring moneys to the
board to be placed in the new millennium fund.
(f) The board may sell and transfer nonincentive tax credits
only in conjunction with the satisfaction of its obligations under
its promissory notes issued pursuant to this section. Each
original sale and transfer of nonincentive tax credits by the board
shall be consummated upon payment to the board, or for its
benefits, of an amount equal to the dollar amount of the
nonincentive tax credits sold and transferred. The nonincentive
tax credits sold and transferred by the board pursuant to this
section shall be claimed as a credit on the tax returns for the
year or years in which the nonincentive tax credits are sold and
transferred by the board. The amount of the nonincentive tax
credit that exceeds the taxpayer's tax liability for the taxable
year in the year of the purchase may be carried to succeeding
taxable years until used in full up to two years after the year of
purchase and may not be carried back to prior taxable years. Any
nonincentive tax credit sold and transferred by the board that
remains outstanding after the third taxable year subsequent to and
including the year of the transfer is forfeited.
(g) Nonincentive tax credits are created, issued and
transferred by the state to the board in a total amount of thirty
million dollars to be used by taxpayers, including persons, firms,
corporations and all other business entities, to reduce the tax
liabilities imposed upon them pursuant to articles twelve-a,
thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and
twenty-four, chapter eleven of this code. The total amount of nonincentive tax credits that are created, issued and transferred
to the board is thirty million dollars. The nonincentive tax
credits are freely transferable to subsequent transferees. The
board shall immediately notify the president of the Senate, the
speaker of the House of Delegates and the governor in writing if
and when any nonincentive tax credits are sold and transferred by
the board.
(h) In conjunction with the department of tax and revenue, the
board shall develop a system for: (i) Registering nonincentive tax
credits, commitments for the sale and transfer of nonincentive tax
credits, the assignments of the commitments and the assignments of
the nonincentive tax credits; and (ii) certifying nonincentive tax
credits so that when nonincentive tax credits are claimed on a tax
return, they may be verified as validly issued by the board,
properly taken in the year of claim and in accordance with the
requirements of this section.
(i) The board may promulgate, repeal, amend and change rules
consistent with the provisions of this article to carry out the
purposes of this section. These rules are not subject to the
provisions of chapter twenty-nine-a of this code, but shall be
filed with the secretary of state.
(b) Any faculty or students of a public or private institution
of higher education in the state may present for the board's
consideration proposals relating to innovative projects or
investment opportunities.
(c) An annual audit shall be conducted by an independent firm
of certified public accountants and shall be made available to the
Legislature annually.
(d) The board shall forward to the West Virginia housing
development fund for its review and information approved investment
packages containing information as is necessary to permit the West
Virginia housing development fund to carry out its duties under
this article. The board shall determine whether each applicant is
an eligible business.
(a) The board may approve or disapprove an investment package
or any portion thereof: Provided, That notwithstanding any
provision of this article to the contrary, the board may not accept
any investment package or any portion thereof unless the same has
been reviewed and approved by the board's executive director in his
or her sole discretion.
(b) The board shall disapprove any investment package if the
business requesting such investment is not in good standing with
all applicable laws affecting the conduct of such business. Upon
request of the board, each affected state agency shall provide the
board with such information as to the standing of each applicant,
notwithstanding any provision of this code to the contrary.
(a) The board shall prepare annually, or more frequently if
deemed necessary by the board, a report of its operations and the
performance of the various investments administered by it. A copy
thereof shall be furnished to the governor, the president of the
Senate, the speaker of the House of Delegates, the legislative
auditor and, upon request, to any legislative committee. Such
report shall be kept available for inspection by any citizen of
this state.
(b) The West Virginia housing development fund shall prepare
annually and submit to the president of the Senate, the speaker of
the House of Delegates, the legislative auditor and, upon request,
any legislative committee, a report on the performance of the board
and the quality of its investments for the preceding year.
All earnings, interest and fees collected by the board on or
in respect of funds provided by the West Virginia housing
development fund shall go back into the jobs development fund
created pursuant to section twenty-c, article eighteen, chapter
thirty-one of this code, for reinvestment and no such earnings,
interest or fees shall be considered part of the general revenue of
the state.
(a) No member of the board or officer, agent or employee
thereof shall, in his or her own name or in the name of a nominee,
hold an ownership interest of more than seven and one-half percent
in any association, trust, corporation, partnership or other entity
which is, in its own name or in the name of a nominee, a party to
a contract or agreement upon which the member or officer, agent or
employee may be called upon to act or vote.
(b) With respect to any direct or any indirect interest, other
than an interest prohibited in subsection (a) of this section, in
a contract or agreement upon which the member or officer, agent or
employee may be called upon to act or vote, the member of the board
or officer, agent or employee thereof holding such interest shall
disclose the same to the board secretary prior to the taking of
final action by the board concerning such contract or agreement and
shall disclose the nature and extent of such interest and the date
of his or her acquisition thereof, which disclosure shall be
publicly acknowledged by the board and entered upon the minutes of
the board. If a member of the board or officer, agent or employee
thereof holds such an interest, he or she shall refrain from any
further involvement on behalf of the board in regard to such
contract or agreement, from voting on any matter pertaining to such
contract or agreement, and from communicating with other members of
the board or its officers, agents and employees concerning said
contract or agreement. Notwithstanding any other provision of law, any contract or agreement entered into in conformity with this
subsection shall not be void or invalid by reason of the interest
described in this subsection, nor shall any person so disclosing
the interest and refraining from further official involvement as
provided in this subsection be guilty of an offense, be removed
from office or be subject to any other penalty or legal disability
on account of such interest.
(c) Any contract or agreement made in violation of subsection
(a) or (b) of this section shall be null and void and shall give
rise to no civil or criminal action against the board or any member
thereof.
liability redemption act.
(a) The Legislature has established a number of pension
systems, including the death, disability and retirement fund of the
West Virginia State Police established in article two, chapter
fifteen of this code; the Judges' Retirement System established in
article nine, chapter fifty-one of this code; and the Teachers
Retirement System established in article seven-a, chapter eighteen
of this code, each of which is a trust for the benefit of the
participating public employees.
(b) This article provides for the redemption of the unfunded
actuarial accrued liability of each pension system through the
issuance of bonds for the purpose of: (i) Providing for the safety
and soundness of the pension systems; and (ii) realizing savings
over the remaining term of the amortization schedules of the
unfunded actuarial accrued liabilities and thereby achieve
budgetary savings.
(1) "Bonds" means bonds, notes, refunding notes and bonds, or
other obligations of the state issued by the Governor pursuant to
this article.
(2) "Consolidated Public Retirement Board" means the Board
created to administer all public retirement plans in this state
under article ten-d, chapter five of this code and any board or
agency that succeeds to the powers and duties of the Consolidated
Public Retirement Board.
(3) "Costs" include, but are not limited to, amounts necessary
to fund any capitalized interest funds and any reserve funds, any
costs relating to the issuance and determination of the validity of
the bonds, fees for obtaining bond insurance, credit enhancements
or liquidity facilities, administrative costs, fees incurred
pursuant to subsection (f), section five of this article and costs
attributable to the agreements described in section six of this
article.
(4) "Death, Disability and Retirement Fund" means the Death,
Disability and Retirement Fund of the West Virginia State Police
created by article two, chapter fifteen of this code.
(5) "Department of Administration" means the Department
established pursuant to article one, chapter five-a of this code
and any board or agency that succeeds to the powers and duties of the Department of Administration.
(6) "Executive order" means an executive order issued by the
Governor to authorize the issuance of bonds as provided in this
article.
(7) "Investment Management Board" means the Board established
under article six, chapter twelve of this code, and any board or
agency that succeeds to the powers and duties of the Investment
Management Board.
(8) "Judges' Retirement System" means the Judicial Retirement
System created under article nine, chapter fifty-one of this code.
(9) "Obligation holders" means any holder or owner of any
bond, any trustee or other fiduciary for any holder, or any
provider of a letter of credit, policy of bond insurance, surety,
or other credit enhancement or liquidity facility or swap relating
to any bond.
(10) "Pension Liability Redemption Fund" means the special
account in the State Treasury created pursuant to subsection (a),
section eight of this article.
(11) "Pension Liability Redemption Payments" means: (a) The
principal of, premium, if any, and interest on any outstanding
bonds issued pursuant to this article; and (b) any other amounts
required to be paid pursuant to the terms of any outstanding bonds,
any indenture authorized pursuant to this article and any other
agreement entered into between the Governor and any obligation
holder.
(12) "Pension systems" means the Judges' Retirement System,
the Death, Disability and Retirement Fund and the Teachers
Retirement System.
(13) "Refund" or "refunding" means the issuance and sale of
bonds the proceeds of which are used or are to be used for the
payment, defeasance or redemption of outstanding bonds upon or
prior to maturity.
(14) "Refunding bonds" means bonds issued for the payment,
defeasance or redemption of outstanding bonds upon or prior to
maturity.
(15) "Teachers Retirement System" means the retirement system
established in article seven-a, chapter eighteen of this code.
(16) "Normal cost" means the value of benefits accruing for
the current valuation year under the actuarial cost method.
(17) "Actuarial cost method" means a mathematical process in
which the cost of benefits projected to be paid after a period of
active employment has ended is allocated over the period of active
employment during which the benefits are earned.
(18) "Unfunded actuarial accrued liability" means the
aggregate of the unfunded actuarial accrued liabilities of the
pension systems, with the unfunded actuarial accrued liability of
each pension system being calculated in an actuarial valuation
report provided by the Consolidated Public Retirement Board to the
Department of Administration pursuant to section four of this
article.
(19) "West Virginia State Police Retirement System" means the
retirement system established in article two-a, chapter fifteen of
this code.
(20) "West Virginia Public Employees Retirement System" means
the retirement system established in article ten, chapter five of
this code.
(21) "West Virginia State Sponsored Pension Systems" means the
pension systems as defined in subdivision twelve of this
subsection, the West Virginia Public Employees Retirement System
and the West Virginia State Police Retirement System.
(b) The aggregate principal amount of bonds issued pursuant to
the provisions of this article is limited to no more than the
lesser of the following: (1) The principal amount necessary, after
deduction of costs, underwriter's discount and original issue
discount, if any, to fund not in excess of one hundred percent of
the unfunded actuarial accrued liability of the Death, Disability
and Retirement Fund of the West Virginia State Police established
in article two, chapter fifteen of this code, one hundred percent
of the unfunded actuarial accrued liability of the Judges'
Retirement System established in article nine, chapter fifty-one of
this code, and ninety-five percent of the unfunded actuarial
accrued liability of the Teachers Retirement System established in
article seven-a, chapter eighteen of this code, as certified by the
Consolidated Public Retirement Board to the Department of Administration pursuant to subsection (e) of this section; or (2)
five billion five hundred million dollars; but in no event shall
the aggregate principal amount of bonds issued exceed the principal
amount necessary, after deduction of costs, underwriter's discount
and original issue discount, if any, to fund not in excess of the
total unfunded actuarial accrued liability, as certified by the
Consolidated Public Retirement Board to the Department of
Administration pursuant to subsection (e) of this section.
(c) The costs of issuance, excluding fees for ratings, bond
insurance, credit enhancements and liquidity facilities, plus
underwriter's discount and any other costs associated with the
issuance shall not exceed, in the aggregate, the sum of one percent
of the aggregate principal amount of bonds issued.
(d) The limitation on the aggregate principal amount of bonds
provided in this section shall not preclude the issuance of bonds
from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the
Department of Administration, the Consolidated Public Retirement
Board shall provide the Department of Administration with a
certified statement of the amount of each pension system's unfunded
actuarial accrued liability calculated in an actuarial valuation
report that establishes the amount of the unfunded actuarial
accrued liability as of a date specified by the Department of
Administration, based upon each pension system's most recent
actuarial valuation as completed by the Consolidated Public Retirement Board.
(f) No later than fifteen days after receipt of a request from
the Governor, the Department of Administration shall provide the
Governor with a certification of the maximum aggregate principal
amount of bonds that may be issued at that time pursuant to
subsection (b) of this section.
(b) The bonds may be sold at public or private sale at a price
or prices determined by the Governor. The Governor may enter into
any agreements necessary or desirable to effectuate the purposes of
this section, including agreements to sell bonds to any person and
to comply with the laws of any jurisdiction relating thereto.
(c) The Governor, in the executive order authorizing the
issuance of bonds or by the execution and delivery by the Governor
of a trust indenture or agreement authorized in the executive
order, may covenant as to the use and disposition of or pledge of
funds made available for pension liability redemption payments or
any reserve funds established pursuant to the executive order or
established pursuant to any indenture authorized by the executive
order. All costs may be paid by or upon the order of the Governor
from amounts received from the proceeds of the bonds and from
amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution
adopted by the Legislature authorizing the same.
(e) Neither the Governor, the Secretary of State, nor any
other person executing or attesting the bonds or any agreement
authorized in this article are personally liable with respect to
payment of any pension liability redemption payments.
(f) Notwithstanding any other provision of this code, the
Department of Administration, in the Department's discretion: (i)
Shall select, employ and compensate one or more persons or firms to serve as bond counsel or cobond counsel who shall be responsible
for the issuance of a final approving opinion regarding the
legality of the bonds issued pursuant to this article; (ii) may
select, employ and compensate one or more persons or firms to serve
as underwriter or counderwriter for any issuance of bonds pursuant
to this article; and (iii) may select, employ and compensate one or
more fiduciaries, financial advisors and experts, other legal
counsel, placement agents, appraisers, actuaries and any other
advisors, consultants and agents necessary to effectuate the
purposes of this article. Notwithstanding the provisions of
article three, chapter five of this code, bond counsel may
represent the state in court, render advice and provide other legal
services as may be requested by the Governor or the Department of
Administration regarding any bond issuance pursuant to this article
and all other matters relating to the bonds.
(b) In addition and not in limitation to the other provisions
of this section, in connection with any bonds issued pursuant to
this article, the Governor may enter into: (i) commitments to
purchase or sell bonds and bond purchase or sale agreements; (ii)
agreements providing for credit enhancement or liquidity, including
revolving credit agreements, agreements establishing lines of
credit or letters of credit, insurance contracts, surety bonds and
reimbursement agreements; (iii) agreements to manage interest rate
exposure and the return on investments, including interest rate
exchange agreements, interest rate cap, collar, corridor, ceiling
and floor agreements, option, rate spread or similar exposure
agreements, float agreements and forward agreements; (iv) stock
exchange listing agreements; and (v) any other commitments,
contracts or agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and
as to the issuance of the bonds, in escrow or otherwise, provide
for the replacement of lost, destroyed or mutilated bonds, covenant
against extending the time for the payment of bonds or interest on
the bonds and covenant for the redemption of bonds and provide the
terms and conditions of the redemption.
(d) Except as otherwise provided in any executive order or in
this article, the terms of the executive order and of this article
in effect on the date the bonds are issued constitute a contract
between the state and obligation holders. Any representation,
warranty or covenant made by the Governor in the executive order,
any indenture of trust or trust agreement authorized by the
executive order, any bond or any other contract entered into
pursuant to this article with any obligation holder shall be a
representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any
portion of them, the right to enforce the payment of the bonds or
agreements authorized in this article or any covenants securing or
relating to the bonds or the agreements. The Governor may
prescribe the procedure, if any, by which the terms of any contract
with obligation holders may be supplemented, amended or abrogated,
prescribe which supplements or amendments will require the consent
of obligation holders and the portion of obligation holders
required to effect the consent and prescribe the manner in which
the consent may be given.
(b) Prior to the time of issuance, when requested by the
Department of Administration, the Investment Management Board shall
prepare and submit to the Governor, the Speaker of the House of
Delegates, the President of the Senate and the Department of
Administration the short-term and long-term investment strategies
that the Investment Management Board intends to follow for
investment of the plan assets of the pension systems, as adjusted
by the deposit of the proceeds of bonds issued pursuant to this
article, which bond proceeds shall be invested pursuant to section
six of article ten of the Constitution of West Virginia and
otherwise as provided by law.
(b) On or before the first day of November of each year, the
Department of Administration shall certify to the Governor and the
State Treasurer and deliver to the Speaker of the House of
Delegates and the President of the Senate a certification as to the
amount of pension liability redemption payments to be appropriated
for the next fiscal year in order to pay in full when due all
pension liability redemption payments that will become due during
the next fiscal year. The certification shall include the amount
and due date of each pension liability redemption payment. All
moneys appropriated by the Legislature in accordance with a
certification made pursuant to this subsection shall be deposited into the Pension Liability Redemption Fund.
(c) The State Treasurer shall pay to the trustee under the
trust indenture or agreement executed by the Governor all pension
liability redemption payments as and when due. The payments shall
be transferred by electronic funds transfer, unless some other
manner of funds transfer is specified by the Governor. No payments
shall be required for bonds that are defeased or bonds for which a
deposit sufficient to provide for all payments on the bonds has
been made.
Refunding bonds shall mature at such time or times, which
shall not exceed the longest original term of the bonds as issued,
as the governor shall determine by executive order issued by the
governor, which executive order shall be received by the secretary
of state and filed in the state register pursuant to section three,
article two, chapter twenty-nine-a of this code.
(b) The state hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that the state will not
limit or alter the rights, powers or duties vested in any state
official, or that state official's successors or assigns, and the
obligation holders in a way that will inhibit any state official,
or that state official's successors or assigns, from carrying out
the state official's rights, powers or duties under this article,
nor limit or alter the rights, powers or duties of any state
official, or that state official's successors or assigns, in any
manner which would jeopardize the interest of any obligation
holder, or inhibit or prevent performance or fulfillment by any
state official, or that state official's successors or assigns, with respect to the terms of any agreement made with any obligation
holder pursuant to section six of this article.
(c) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, any changes in unfunded actuarial accrued
liability in any of the West Virginia state sponsored pension
systems resulting from the actual experience for that system
occurring during any fiscal year due to net differences between the
expected and actual experience for that year will be fully
amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net actuarial gain or loss to the Governor. The
certification shall be made on or before the thirty-first day of
January of each year. The net actuarial gain or loss for the
fiscal year shall be determined from the actuarial valuation
authorized by the Consolidated Public Retirement Board for each
plan completed at as of the first day of the following fiscal year.
Following the receipt of the certification of net actuarial gain or
loss, the Governor shall submit the amount of the amortization
payment or credit each year for the pension systems as part of the
annual budget submission or in an executive message to the
Legislature. The Consolidated Public Retirement Board shall
include the ten year amortization in the determination of the
adequacy of the employer contribution percentage for the West
Virginia Public Employees Retirement System and West Virginia State Police Retirement System.
(d) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, if the unfunded actuarial accrued liability
of any of the West Virginia state sponsored pension systems
increases or decreases due to changes in actuarial assumptions
adopted by the Consolidated Public Retirement Board for completion
of the annual actuarial valuation for any plan, the change shall be
fully amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net change due to changes in assumptions to the
Governor. The certification shall be made on or before the
thirty-first day of January of each year. Following the receipt of
the certification of change due to changes in actuarial
assumptions, the Governor shall submit the amount of the
amortization payment each year for the pension systems as part of
the annual budget submission or in an executive message to the
Legislature. The Consolidated Public Retirement Board shall
include the ten year amortization in the determination of the
adequacy of the employer contribution percentage for the Public
Employees Retirement System and West Virginia State Police
Retirement System.
(e) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding (1) the state will not increase any existing benefits or create any new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments from any
of the West Virginia state sponsored pension systems, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for each plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature; and (2) if any increase
of existing benefits or creation of new benefits for any retirees
or beneficiaries currently receiving monthly benefit payments under
any of the West Virginia state sponsored pension systems, other
than an increase in benefits or new benefits effected by operation
of law in effect on the effective date of this article, causes any
additional unfunded actuarial accrued liability in any of the West
Virginia state sponsored pension systems as calculated in the
annual actuarial valuation for each plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system will be fully amortized over no more than the six
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the
certification of additional actuarial accrued liability, the Governor shall submit the amount of the amortization payment each
year for the pension systems as part of the annual budget
submission or in an executive message to the Legislature. The
Consolidated Public Retirement Board shall include the six year
amortization in the determination of the adequacy of the employer
contribution percentage for the West Virginia Public Employees
Retirement System and West Virginia State Police Retirement System.
(f) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding that the computation of annuities or benefits
for active members due to retirement, death or disability as
provided for in the pension systems shall not be amended in any
manner that increases any existing benefits or provides for new
benefits.
(g) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, the state will not increase any existing
benefits or create any new benefits for active members due to
retirement, death or disability of the West Virginia Public
Employees Retirement System or the West Virginia State Police
Retirement System unless the actuarial accrued liability of the
plan is at least eighty-five percent funded as of the last day of
the prior fiscal year as determined in the actuarial valuation for
the plan completed for the Consolidated Public Retirement Board as
of the first day of the following fiscal year as of the date the improvement is adopted by the Legislature. Any additional unfunded
actuarial accrued liability due to any improvement in active
members benefits shall be fully amortized over not more than ten
years following the date the increase in benefits or new benefits
become effective as certified by the Consolidated Public Retirement
Board. The Consolidated Public Retirement Board shall include the
ten year amortization in the determination of the adequacy of the
employer contribution percentage for the West Virginia Public
Employees Retirement System and West Virginia State Police
Retirement System.
(b) Notwithstanding any other provision of this code, the
bonds issued pursuant to this article are securities in which all
public officers and bodies of this state, including the investment
management board, all municipalities and other political
subdivisions of this state, all insurance companies and
associations and other persons carrying on an insurance business,
including domestic for life and domestic not for life insurance
companies, all banks, trust companies, societies for savings,
building and loan associations, savings and loan associations,
deposit guarantee associations and investment companies, all
administrators, guardians, executors, trustees and other
fiduciaries and all other persons whatsoever who are authorized to
invest in bonds or other obligations of the state may properly and
legally invest funds, including capital, in their control or
belonging to them.
There is hereby created a fund in the State Treasury entitled
the Enterprise Resource Planning System Fund to be administered by
the board. The fund shall consist of any appropriations or
transfers made for the purpose of studying, evaluating, creating,
developing, implementing and managing a new Enterprise Resource
Planning System and any fees collected in accordance with
legislative rules approved by the board and proposed pursuant to
this article. Expenditures from the fund are to be made for the
purposes set forth in this article in accordance with
appropriations by the Legislature and are not authorized from
collections.
The unencumbered balances of all funds allocated to the
enterprise resource planning system for fiscal year ending June 30,
2011, and the fiscal year ending June 30, 2012, are hereby
transferred to the Enterprise Resource Planning System Fund on the
effective date of this section in the year 2011.
(a) The Legislature finds that the creation of a public body
corporate to make investment funds available to eligible businesses
would stimulate economic growth and provide or retain jobs within
the state. Accordingly, it is declared to be the public policy of
the state to create an investment program to inject needed capital
into the business community, sustain or improve business
profitability and provide jobs to the citizens of the state.
For purposes of this article:
(a) The Jobs Investment Trust Board is continued. The board
is a public body corporate and established to improve and otherwise
promote economic development in this state.
(a) It is the duty of the board to manage and control the jobs
investment trust. With the advice and consent of the Senate, the
Governor appoints an executive director of the jobs investment
trust who is or has been a senior executive of a major financial
institution, brokerage firm, investment firm or similar
institution, with extensive experience in capital market
development. The director serves at the Governor's will and
pleasure and is responsible for managing and administering the
daily functions of the jobs investment trust and for performing
other functions necessary to the effective operation of the trust.
The compensation of the director is annually fixed by the board.
The board may:
(a) The new millennium fund is continued to permit the board
to better fulfill its mission to mobilize financing and capital for
emerging, expanding and restructuring businesses in the state. New
millennium fund moneys are to consist of all appropriations for use
by the jobs investment trust board made by the Legislature
subsequent to the thirty-first day of December, one thousand nine
hundred ninety-nine, and funds borrowed from private or
institutional lenders by the board through the issuance of
promissory notes. Fund moneys may be held in a separate account or
accounts by or at the West Virginia housing development fund for
the board until the board disburses any portion of the funds. Fund
moneys that are not set aside or otherwise designated for paying
interest on the promissory notes may be used by the board in
accordance with and to effectuate the purposes of this article.
The board may impose reasonable fees and charges associated with
its investment of funds from the new millennium fund in eligible
businesses to be paid in any combination of money, warrants or
equity interests.
(a) The board shall accept and review applications from
eligible businesses and shall determine the investment worthiness,
the benefits to the West Virginia economy, the leverage potential
for investments in small business investment companies, the jobs
creation potential and the economic circumstances of the region or
regions of the state that would benefit from each proposal. The
board shall attempt to balance its investments, as nearly as is
practicable, among the geographic regions of the state.
Any documentary material or data made or received by the board
for the purpose of furnishing assistance, to the extent that the
material or data consists of trade secrets, commercial, financial
or personal information regarding the financial position or
activities of such business or person, shall not be considered
public records and shall be exempt from disclosure pursuant to the
provisions of chapter twenty-nine-b of this code. Any discussion
or consideration of the trade secrets, commercial, financial or
personal information may be held by the board in executive session
closed to the public, notwithstanding the provisions of article
nine-a, chapter six of this code: Provided, That the board shall
make public the following information regarding executed
investments: (1) The names and addresses of the principals of the
business and its board of directors; (2) the location or locations
of the projects; (3) the amount of the investment or financial
assistance provided by the board; (4) the purpose of the investment
or financial assistance; (5) the maturity, interest rate and other
pertinent terms of the investment; (6) the fixed assets which serve
as security for the investment; and (7) the names and addresses of
all persons holding twenty-five percent or more of the equity of
the entity receiving investment assistance: Provided, however,
That the board shall keep available in its offices for inspection by any citizen of this state the annual report prepared pursuant to
the requirements of section twelve of this article and the annual
audit report prepared pursuant to the requirements of sections nine
and fourteen of this article.
In order to provide excellent investment opportunities and to
effectively implement the new millennium fund, the investment
activity and the new millennium fund activity provided by this
article shall be exempt from the bidding and public sale
requirements, from the approval of contractual agreements by the
department of finance and administration or the attorney general
and from the requirements of chapter five-a of this code. The
transactions provided by this article shall be subject to an annual
audit by an independent firm of certified public accountants.
The provisions of this article do not and shall not be
construed to authorize the jobs investment trust board at any time
or in any manner to grant or pledge the credit or taxing power of
the state. None of the obligations or debts created by the jobs
investment trust board under the authority granted in this article
are or are to be construed to be obligations of the state.
This article shall be known and may be cited as the pension
The Legislature finds and declares that:
As used in this article, unless the context clearly requires
a different meaning:
(a) The Governor may, as provided by this article, issue the
bonds authorized in this section at a time or times as provided by
a resolution adopted by the Legislature to fund all or a portion of
the unfunded actuarial accrued liability, the bonds to be payable
from and secured by moneys deposited in the Pension Liability
Redemption Fund. Any bonds issued pursuant to this article, other
than refunding bonds, shall be issued no later than five years
after the date of adoption of the resolution of the Legislature
authorizing the issuance of the bonds referred to in this section.
(a) Upon the adoption of a resolution by the Legislature
authorizing the issuance of the bonds in the amount and upon the
terms specified in the resolution, the bonds shall be authorized by
an executive order issued by the Governor. The executive order
shall be received by the Secretary of State and filed in the State
Register pursuant to section three, article two, chapter
twenty-nine-a of this code. The Governor, either in the executive
order authorizing the issuance of the bonds or by the execution and
delivery by the Governor of a trust indenture or agreement
authorized in the executive order, shall stipulate the form of the
bonds, whether the bonds are to be issued in one or more series,
the date or dates of issue, the time or times of maturity, the rate
or rates of interest payable on the bonds, which may be at fixed
rates or variable rates and which interest may be current interest
or may accrue, the denomination or denominations in which the bonds
are issued, the conversion or registration privileges applicable to
some or all of the bonds, the sources and medium of payment and
place or places of payment, the terms of redemption, any privileges
of exchangeability or interchangeability applicable to the bonds,
and the entitlement of obligation holders to priorities of payment
or security in the amounts deposited in the pension liability
redemption fund. Bonds shall be signed by the Governor and
attested by the Secretary of State, by either manual or facsimile signatures.
(a) The Governor may enter into contracts with obligation
holders and the Governor shall comply fully with the terms and
provisions of any contracts made with obligation holders.
(a) The proceeds from the sale of bonds, other than refunding
bonds, issued pursuant to this article, after payment of any costs
payable at time of issuance of the bonds, shall be paid to the
Consolidated Public Retirement Board to fund the amount of the
unfunded actuarial accrued liability for the pension systems
provided for by the bonds.
(a) There is hereby continued a special account in the State
Treasury to be administered by the State Treasurer, which is
designated and known as the "Pension Liability Redemption Fund,"
into which shall be deposited any and all amounts appropriated by
the Legislature or funds from any other source whatsoever which are
made available by law for the purpose of making pension liability
redemption payments. All funds deposited to the credit of the
Pension Liability Redemption Fund shall be held in a separate
account and all money belonging to the Fund shall be deposited in
the State Treasury to the credit of the Pension Liability
Redemption Fund.
Subject to the provisions of the outstanding bonds issued
under this article and subject to the provisions of this article,
the governor shall have the power to refund any outstanding bonds,
whether the obligation refunded represents principal or interest,
in whole or in part, at any time.
(a) The State of West Virginia covenants and agrees with the
obligation holders, and the indenture shall so state, that the
bonds issued pursuant to this article are a direct and general
obligation of the State of West Virginia; that the pension
liability redemption payments will be included in each budget along
with all other amounts for payment and discharge of the principal
of and interest on state debt; that the full faith and credit of
the state is hereby pledged to secure the payment of the principal
of and interest on the bonds; and that annual state taxes shall be
collected in an amount sufficient to pay the pension liability
redemption payments as they become due and payable from the Pension
Liability Redemption Fund.
Any obligation holder, except to the extent that the rights
given by this article may be restricted by the executive order
authorizing the issuance of the bonds or by the trust indenture or
agreement authorized in such executive order, may by civil action,
mandamus or other proceeding, protect and enforce any rights
granted under the laws of this state, granted under this article,
or granted by the executive order or by the trust indenture or
agreement authorized in such executive order, and may enforce and
compel the performance of all duties required by this article, by
the executive order or by the trust indenture or agreement
authorized in such executive order.
(a) The bonds issued under the provisions of this article
shall be and have all the qualities of negotiable instruments under
the uniform commercial code of this state and shall not be invalid
for any irregularity or defect in the proceedings for the issuance
thereof and shall be incontestable in the hands of bona fide
purchasers or holders thereof for value.
All bonds issued under the provisions of this article and the
income therefrom shall be exempt from taxation by the state of West
Virginia, or by any county, school district or municipality
thereof, except inheritance, estate and transfer taxes.
It is the intent of the Legislature that in the event of any
conflict or inconsistency between the provisions of this article
and any other law, to the extent of the conflict or inconsistency,
the provisions of this article shall be enforced and the provisions
of the other law shall be of no effect.
Notwithstanding the effective date of this Act of the
Legislature, this article shall not become operational and shall
have no force and effect until the day the people ratify an
amendment to the Constitution of this state authorizing pension
obligation bonds.
If any section, subsection, subdivision, subparagraph,
sentence or clause of this article is adjudged to be
unconstitutional or invalid, such adjudication shall not affect the
validity of the remaining portions of this article and, to this
end, the provisions of this article are hereby declared to be
severable.
Note: WV Code updated with legislation passed through the 2012 1st Special Session
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